Detention & Guantanamo

Oral Argument Preview in Suleiman v. Obama

By Wells Bennett
Wednesday, September 14, 2011, 2:53 PM

The next episode in the D.C. Circuit’s Guantanamo detention saga: Suleiman v. Obama (Case No. 10-5292), an appeal set for oral argument this Friday before the D.C. Circuit.  UPDATE: the oral argument is set for 2 p.m.

The case likely will not radically steer detention law in one direction or another.  In that way, Suleiman echoes Khan, a detention case recently decided by the Court of Appeals.  Like Khan, Suleiman’s case will probably turn on finer issues.  The main question will be whether the evidence supported the determination by U.S District Judge Reggie Walton that--based on two intelligence reports, the petitioner’s own testimony and other evidence he put forward--Suleiman was “part of” the Taliban and therefore detainable. Other issues will be whether Walton drew reasonable inferences from the record, and whether statements in the reports reflected Suleiman’s actual words or, instead, paraphrases supplied by the reports’ authors.

To be sure, Suleiman does raise some fundamental challenges to the government’s detention powers.  Suleiman says, among other things, that the legal standard for detention adopted by the Court of Appeals in its Al-Bihani decision cannot be squared with the Authorization for the Use of Military Force (“AUMF”)--and should thus be rejected. This and his other broad objections to the government's detention authority, however, were not advanced during District Court proceedings.  Odds are that the Court of Appeals will rest its decision on the evidentiary sufficiency of the District Court’s conclusions.

Below are summaries of the case’s background, the district court’s ruling denying Suleiman’s habeas petition, and the arguments on appeal.  (The briefs can be found here, and the district court's opinion is here.)

Background

The petitioner, Adbulrahman Abdou Abou Al Ghaith Suleiman, was born and raised in Taiz, Yemen, and graduated from high school there in 1999 or 2000. A short time afterwards, at a Taiz mosque, a man by the name of Abu Khulud found Suleiman and encouraged the latter travel to Afghanistan. There, Khulud said, Suleiman might find a wife and even obtain a house from the Taliban, Afghanistan’s then-ruling political party. After meeting with Khulud again, Suleiman accepted his proposal. Khulud gave Suleiman a passport, $100, and an airplane ticket. Suleiman later would tell interrogators that Khulud had Taliban connections--though there is some question as to whether Suleiman meant that Khulud had them at the time of their initial meeting.

Suleiman traveled alone by air to Karachi, Pakistan. Upon arriving, took a bus to the city of Quetta. He spent one hour at Quetta’s “Daftr” guesthouse before setting off again, this time to Kandahar, Afghanistan. There, he stayed for seven days at another guesthouse, an “Arab house.” Suleiman’s next and longest stop was Kabul, where he lived for seven months at a guesthouse operated by Hamza Al-Qaeity. While based at Al-Qaeity’s guesthouse, Suleiman took a side trip to what he characterized as a “recreational place” roughly 20 kilometers from the Afghan capital. While there, he fired a PK rifle given to him by another individual. Just after the September 11 attacks, Suleiman returned to this “recreational place” from Al-Qaeity’s guesthouse.  And he traveled from there to Jalalabad and ultimately to Pakistan, where he was arrested by Pakistani police. The Pakistanis transferred him to American custody in Kandahar and then Guantanamo, where he has remained for eight years.

The District Court’s Decision

Suleiman filed a petition for a writ of habeas corpus, which Judge Walton denied in a 43-page ruling. The District Court’s opinion opened with a recitation of the case’s undisputed facts, and next recounted the criteria for detention as set forth in the AUMF and interpreting case law. Judge Walton then turned to the Government’s position. The Government claimed the power to hold Suleiman because he allegedly: attended al-Qaida’s Tarnak Farms training camp; was recruited by Khulud, an al-Qaida or Taliban operative; stayed in the Daftr, Arab and Al-Qaeity guesthouses, some or all of which were associated with the Taliban or Al-Qaeda; served as a Taliban guard at the Taliban’s Sarposa prison; traveled to an area near the front lines of the battle in Afghanistan; and was captured on or near the battlefield at Tora Bora.

By way of proof, the Government presented mostly written intelligence and law enforcement materials, some of which contained alleged admissions by Suleiman. A senior intelligence official also offered a sworn declaration regarding Taliban and Al-Qaeda ties to Afghan and Pakistani guesthouses, including the “Arab House” Suleiman visited. Suleiman countered with a declaration from his own expert, a professor at the University of Richmond. The professor described guesthouse stays as unremarkable fare for the region, and said further that no quid pro quo or payment is required to stay in a guesthouse, and that the mere presence Taliban fighters at a guesthouse did not suggest Suleiman’s own terrorist affiliations or sympathies. Suleiman and his brother also testified at the hearing on his habeas petition.

Judge Walton evaluated the record in two steps. First he analyzed the reliability of the voluminous hearsay offered against Suleiman, according to principles set forth in a federal habeas statute, the Federal Rules of Evidence, and past detention decisions of the D.C. Circuit. Applying these, Walton voiced his “concern[] that much of the hearsay proffered by the government is unreliable.” Nothing, for example, established the qualifications of intelligence personnel who authored some of the reports. The government also did not put forth proof that other intelligence documents were transcribed under circumstances that suggested their reliability.

Walton nevertheless put aside these defects, because he found that the government had demonstrated the reliability of two other quite critical documents: one, a record of Suleiman’s 2002 interrogation, and the other a report summarizing one of his interrogation sessions in 2004. Both, Walton wrote, contained significant admissions by Suleiman, and were supported by evidence reflecting the qualifications of the translators who were present during Suleiman’s questioning. The interrogators themselves also described, in affidavits, the fashion in which they transcribed Suleiman’s statements.

The opinion then weighed the reliable parts of the Government’s case--the two reports--against the testimony and other evidence offered by Suleiman in support of his petition. On balance, and relying mostly on the self-incriminating statements contained in the 2002 and 2004 reports, Walton determined that the government had demonstrated Suleiman’s detainability by a preponderance of the evidence. Khulud was indeed a Taliban official, the Court said, and he encouraged and facilitated Suleiman’s travel to Afghanistan. Walton next found that Suleiman indeed stayed at guesthouses affiliated with the Taliban. Lastly, the District Court found that he traveled to and remained near the front lines of the conflict in Afghanistan. These facts, and the reasonable inferences drawn from them, lead Judge Walton to conclude that Suleiman was lawfully detained.

His conclusion also comprised a blow-by-blow rejection of Suleiman’s innocent explanations for his conduct. Walton acknowledged Suleiman’s consistent claim--made in two interrogation sessions, during Combatant Status Review Tribunal (“CSRT”) proceedings and at his habeas hearing--that he traveled to Afghanistan only to find a wife and home, not to fight alongside the Taliban. Yet the judge also noted Suleiman’s admission, made during interrogation, that he never meaningfully pursued either of those goals. The opinion therefore dismissed Suleiman’s stated motive, and instead, Walton concluded that Suleiman’s recruitment by Khulud and residence at guesthouses visited by Taliban fighters implied a more nefarious objective.

Judge Walton similarly dismissed Suleiman’s suggestion that the “Arab House” and Al-Qaiety guesthouse offered free lodging to all comers, regardless of their affiliations, and that the presence of Taliban fighters at both was insignificant. It struck Walton as implausible that the Taliban might allow its members to bunk alongside just anyone; the security risk of a guesthouse’s infiltration by the Northern Alliance or other hostile forces would be too great.  Walton also thought Suleiman’s extended stay at the Al-Qaeity guesthouse necessarily would require him to provide some form of assistance to Al Qaeity, who had taken up arms with the Taliban and fought against the Northern Alliance. And Suleiman had told interrogators that the “recreational place” he twice visited was, in fact, used as a stopover by Taliban soldiers en route to the battlefield. Suleiman had acknowledged firing a weapon at the “recreational place.” Walton thought it highly unlikely that the Taliban would permit a man of unknown allegiance to shoot a gun in one of its staging areas. More probably, Walton suggested, the Taliban tolerated Suleiman’s two visits because Suleiman was actually “part of” the Taliban.

That much, the judge concluded, authorized Suleiman’s detention under the AUMF.

Suleiman’s Opening Brief

Suleiman’s Opening Brief begins with two broadsides against the Government’s detention power to hold a detainee like Suleiman, an alleged member of the Taliban who did not engage in hostilities against the United States.

First up is Suleiman’s claim under the Constitution’s federal ex post facto and due process clauses. Boumediene held that the writ of habeas corpus ran to Guantanamo. According to Suleiman, that decision logically implies that other constitutional protections, including the ban against congressional ex post facto laws and the Fifth Amendment’s guarantee of due process, apply to him and other Guantanamo detainees. Proceeding on that assumption, Suleiman argues that the District Court found him detainable “based almost entirely upon [] conduct that occurred before September 18, 2001, the date the AUMF took effect.”  This, according to Suleiman, violated the ex post facto clause.

He also advances a related due process claim, arguing that the “part of” test endorsed by the Court of Appeals in Al-Bihani and applied by the District Court is unlawfully vague. As support, Suleiman cites a Supreme Court case that rejected, on vagueness grounds, a law that applied to so-called gang “members.” The dictionary defines “member” as a “person that is part of a society, party, community . . . or other body” (emphasis in Suleiman’s brief). Because the word “member” already has been found vague, Suleiman says, Al-Bihani’s “part of” phrase--encompassed within the ordinary definition of “member”--should be found vague, too.

The second of Suleiman’s legal arguments is that Al-Bihani’s “part of” analysis is wrong as a matter of statutory interpretation. In Al-Bihani, the D.C. Circuit adopted a disjunctive standard, one that authorizes the detention of persons who are “part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners” (emphasis added). According to Suleiman, the standard’s “part of” prong was justified in light of the 2006 and 2009 Military Commissions Acts (“MCA”) on the theory that non-criminal detention authority could be no narrower than the authority to try suspected terrorists in specialized military tribunals. Yet, as Suleiman points out, the 2009 MCA “delet[ed] members of the Taliban from the category of those who were subject to military commission trials.” This suggests an implied repeal of the AUMF, to the extent it reached Taliban personnel. According to Suleiman, if Taliban personnel cannot be tried in military commissions, then they cannot be detained under the AUMF, either.

Suleiman therefore proposes that the Court of Appeals jettison Al-Bihani’s disjunctive analysis and adopt a standard akin to that enunciated by the Supreme Court in Hamdi. The Hamdi test is conjunctive, in that it authorizes detention only upon a showing that the petitioner is a member of an enemy force and that the petitioner has participated in armed conflict against the United States. That standard obviously does not encompass Suleiman, who did not actually take up arms against the American military or its allies. For that reason, Suleiman argues, Judge Walton should have granted his petition.

Even if Al-Bihani’s test is sound and was properly applied by the District Court, Suleiman argues, Judge Walton still erred in finding that Suleiman was “part of” the Taliban. The law, Suleiman says, does not allow trial courts to “assume ‘facts’ that are not based upon reasonable inferences from the evidence or that contradict unrebutted evidence.” Likewise, “District Court judges are free to disbelieve testimony or documentary evidence, but they may not use that disbelief to infer the opposite. Negative inferences based on disbelief may not substitute for affirmative proof of facts.”

Each of Walton’s key findings violated these principles, according to Suleiman. He found that Suleiman wanted to travel to Afghanistan in order to become a Taliban fighter--both because he discredited Suleiman’s stated motive, and because he drew a negative inference about Suleiman’s true purpose. The inference was unwarranted, as there was no evidence to contradict Suleiman’s undisputed claim that he went to Afghanistan to find a spouse and a home. To the contrary, Suleiman argues, when he arrived in Afghanistan, Khulud told him for the first time that he would have to fight with the Taliban in order to win a home from them. This greatly upset Suleiman, who refused to fight and protested Khulud’s apparent bad faith. There simply was no evidence that Suleiman went to Afghanistan for any purpose other than the one he consistently testified to. Walton therefore erred in finding to the contrary.

Likewise, Suleiman’s Opening Brief also challenges as unreasonable the District Court’s other main determinations. The first of these was that Suleiman must have assisted Al-Qaiety in exchange for room and board; the second was that the Taliban would not have tolerated Suleiman’s presence while armed at the “recreational area” unless it was sure of his loyalty.  There was no direct evidence that Al-Qaeity conditioned Suleiman’s extended stay at his guesthouse on Suleiman’s becoming a Taliban fighter. Al-Qaeity offered Suleiman housing for charitable reasons, and Suleiman denied being a Taliban fighter. He also received no weapons training: a suggestion to the contrary, contained in the 2004 report, was likely added by the report’s author, and did not reflect anything Suleiman actually said. Likewise, while at the “recreational place,” Suleiman fired a weapon into a wall a few times, but specifically declined to receive any formal instructions on how to use a firearm. In Suleiman’s view, none of this suggested, or established, a quid pro quo between Suleiman and Al-Qaeity, much less one between Suleiman and the Taliban.

With respect to the “recreational place,” Suleiman focuses on the language used in the 2004 report. “Recreational place” was Suleiman’s characterization of the locale; the 2004 report referred to this as one of several “waiting points” just outside of Kabul, and explained that these were “staging areas” for Taliban fighters. But Suleiman, in his brief, suggests that, given his age and inexperience, it is most unlikely that he indeed uttered these words. According to Suleiman, Judge Walton erred in treating them as an admission, and in turn relying on them as a basis for finding against Suleiman. Equally flawed, Suleiman contends, was Judge Walton’s determination regarding the men who loaned Suleiman two firearms, one a PK rifle which Suleiman shot a few times, and another an AK-47 he carried for protection in the mountains near Pakistan. No evidence suggested that these men were, in fact, members of the Taliban. The record thus afforded Walton no basis on which to speculate about the Taliban’s trust of Suleiman.

The Government’s Response

Naturally enough, the government argues that Judge Walton correctly denied Suleiman’s petition. That more general position breaks down into two more specific ones about the District Court’s handling of the case. First, the government says, Judge Walton’s findings are to be reviewed under the forgiving “clear error” standard, and ample evidence supported his determination that Suleiman was “part of” the Taliban. Second, the government argues that Suleiman’s legal claims regarding the AUMF were not advanced at the trial level and are thus forfeited--and are meritless in any event.

The gist of the government’s brief is that Judge Walton’s key findings--regarding Suleiman’s motivation, his stay at guesthouses, and his trips to the “recreational place”--were properly supported by the record, in particular by the intelligence reports that Walton cited. For example, Suleiman suggests that Judge Walton improperly discredited his stated motive of finding a wife and a house, and proceeded to find, without any evidentiary basis, that the petitioner’s true purpose in traveling to Afghanistan was to take up with the Taliban. But, the government notes, Suleiman told his interrogators that he had been approached by Khulud, a Taliban operative.  His chosen route from Yemen to Pakistan to Afghanistan also had been used by jihadists in the past. And Suleiman’s residence at Taliban guesthouses and two visits to a Taliban staging area also confirmed the real objective behind his journey from Taiz. There was enough evidence, in other words, to support the District Court’s assessment of Suleiman’s motive.

The same holds true, the government argues, with respect to Suleiman’s guesthouse stays and visits to a Taliban staging area. The detainee admitted, for example, that visitors to one guesthouse had stored weapons; Al-Qaeity, according to Suleiman, also fought with the Taliban, as did other guests at his home. Suleiman’s 2004 interrogation report likewise contained this statement about the “recreational place,” which the government and Judge Walton attributed to Suleiman himself: there, the report said, “fighters would make final preparations prior to going into battle at the front.” According to the government, the District Court thus had more than a sufficient basis to find that Suleiman was “part of” the Taliban when he was captured.

The government also notes that there was a great deal of evidence supporting the detention that Judge Walton did not assess in denying Suleiman relief. Most notably, it recounts the introduction into evidence of a video that allegedly showed Suleiman attending a speech given by Bin Laden at Al-Qaeda’s Tarnak Farms training camp.

The government next claims that Suleiman’s ex post facto, void-for-vagueness, and statutory interpretation arguments were not raised during proceedings before the District Court. For that reason, in the government’s view, the arguments were forfeited and cannot be considered on appeal.

In any event, it also insists that these arguments lack merit. With respect to the due process claim, the Court of Appeals’ Kiyemba decision says that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States. And the void-for-vagueness doctrine has no application to the AUMF, which does not outlaw any conduct, but instead allows the executive branch to use force against certain enemies. What’s more, the AUMF is also not vague from Suleiman’s standpoint, the government argues. It authorizes military action against the planners of the September 11 attacks or those who harbored them. According to the government, this latter group must obviously include the Taliban and, thus, those who are “part of” it.

The AUMF’s non-criminal nature, in the government’s view, also forecloses Suleiman’s ex post facto claim. The federal ex post facto clause applies only to punitive laws. But the government contends that Suleiman was “part of” the Taliban in December 2001--that is, after the AUMF had entered into force on September 18, 2001. The law allows courts to assess evidence that predates a statute’s enactment in determining whether the government has proven a fact that predated the statute. It therefore does not matter that, as Suleiman says, the District Court found him detainable based almost entirely upon conduct that occurred prior to the AUMF’s effective date.

That leaves Suleiman’s broader objection to Al-Bihani’s disjunctive, “part of” test for detention.  It should fail for three reasons, the government says. The first is the AUMF’s text. This authorizes force against the planners of the September 11 and the nations and organization who harbored them--including the Taliban. And though Suleiman suggests that the 2009 MCA, by excluding the Taliban from military commission jurisdiction, also implicitly removed the Taliban from the scope of the AUMF’s detention coverage, he cites no authority for that claim. The Court of Appeals in fact has affirmed habeas denials involving Taliban fighters, and further said that detention authority sweeps wider than the MCA’s prosecution authority. According to the government, a narrowing of the MCA would thus not necessarily exclude the Taliban from the AUMF’s coverage. Finally, the D.C. Circuit has held--contrary to Suleiman’s argument--that detainees need not actually engage in hostilities before the government may detain them.  Precedent, the government argues, therefore disposes of the petitioner’s statutory interpretation argument.

Suleiman’s Reply

In his reply brief, Suleiman denies that he has forfeited his statutory, ex post facto, and due process claims. Such claims are purely legal in nature, he argues, and require no further factual development; the Court of Appeals and other courts have resolved purely legal issues under similar circumstances, even when those issues were not raised at the District Court level.

Suleiman once more points out the unlawfulness of the Al-Bihani  “part of” test. In this regard, he emphasizes his case’s dissimilarity from Al-Bihani. According to Suleiman, his is the first case in which a petitioner was detained solely on the basis of Taliban membership, and he raised that issue in litigation. In Al-Bihani, the detainee was allegedly a member of both Al-Qaeda and the Taliban. According to Suleiman, Al-Bihani’s disjunctive, “hostilities or membership” test cannot be applied to Taliban members who have not engaged in hostilities--among other things, because Congress removed the Taliban from MCA jurisdiction, and because (unlike Al-Qaeda) the Taliban is not a dedicated terrorist organization. The Taliban was once Afghanistan’s ruling party, with which our government maintained relations. According to Suleiman, Congress simply did not mean for the AUMF to permit the detention of Taliban functionaries who have never fought against the United States.

Suleiman also takes issue with the government’s suggestion that the due process clause does not apply to Guantanamo. It is true, Suleiman says, that Kiyemba’s majority opinion said in dicta that the due process clause did not run to the detainees there. But that conclusion stemmed from the majority’s misreading of the Supreme Court’s decision in Boumediene. The better interpretation, as Judge Judith Rogers noted in her Kiyemba concurrence, is that Boumediene allows for the extraterritorial application of Constitutional rights--including due process--based upon practical considerations. Suleiman therefore insists that he may properly raise a due process challenge.

As for that challenge’s merits, Suleiman emphasizes that the AUMF is punitive in nature, as the statute has permitted the United States military to hold him under prison conditions for roughly nine years. He therefore rejects, as beside the point, the government’s claim that the due process clause applies only to criminal statutes. Besides, courts have sustained void-for-vagueness challenges to non-criminal statutes, he argues. And there is no doubt about the AUMF’s vagueness. In Suleiman’s view, the statute arguably sweeps in not merely Taliban fighters, but also low-level officials who merely worked for the Taliban while the group controlled the Afghan government. The penal consequences of AUMF detention also inform Suleiman’s reply regarding the ex post facto clause--which, Suleiman says he can may invoke by virtue of the Boumediene decision. The Supreme Court, he argues, has blessed ex post facto challenges to non-criminal laws, such as ones regulating the practice of law.

The reply brief’s final section addresses the proof that the District Court cited in concluding that Suleiman was indeed “part of” the Taliban at the time of his capture.

Suleiman insists that he was disadvantaged during habeas proceedings, as Judge Walton denied his motion to require the government to authenticate its hearsay evidence. The 2002 and 2004 intelligence reports also were authenticated through the use of other hearsay materials. This procedure deprived Suleiman a meaningful opportunity to test the government’s proof--for example, to inquire whether statements in the 2002 and 2004 reports were, in fact, properly attributed to Suleiman, or instead were added subsequently by the reports’ drafters.

According to Suleiman, both the government and Judge Walton also took serious liberties with the evidentiary record. Suleiman, for example, denies telling his interrogators that, at the time he met Khulud, he thought Khulud was affiliated with the Taliban. The 2002 report says instead that Suleiman “believes” that Khulud was so affiliated, and that he “has” suspicions about Khulud’s possible Taliban connections, reflecting his state of mind at the time of the interrogation, not at the time of the events. The government is on equally dubious ground in suggesting that Suleiman admitted that the “recreational area” outside Kabul was, in fact, a “staging area” for Taliban fighters. An inexperienced youth from Taiz simply would not use the “staging area” phrase, he argues. A military interrogator, however, would; the phrase was thus likely inserted by government personnel and should not have been attributed to Suleiman.

Suleiman also does not spare Judge Walton, and argues that the judge utterly ignored important and uncontradicted evidence. One example: according to Suleiman, only upon arriving in Afghanistan did Khulud reveal to Suleiman that the latter would be expected to fight for the Taliban. That angered Suleiman and prompted his stern objection, and the two men immediately parted company.

All in all, Suleiman argues, the evidence properly understood should have been insufficient to establish Suleiman’s Taliban membership--whether that evidence consists of events occurring after the AUMF’s entry into force, or of events occurring before and after it. To avoid ex post facto concerns, Suleiman suggests that the AUMF can only be applied prospectively--that is, the District Court could only take account of evidence arising after the statute’s effective date of September 18, 2001. For Suleiman, there simply was not enough post-September 18 material to show that he was “part of the Taliban.” Such material showed only that he: (1) resided at Al-Qaiety’s guesthouse for five weeks; (2) left Kabul in November, to avoid reprisal by the enraged followers of Ahmed Shah Massoud, who recently been assassinated; (3) stayed at the “recreational place” for roughly two weeks thereafter; (4) after that place became unsafe, joined a group that traveled to Pakistan; (5) carried a gun for personal protection; and (6) was arrested upon arriving in Pakistan and transferred to the custody of the United States. That, Suleiman maintains, is simply not enough to support the denial of his habeas petition.

Nor, Suleiman argues, can the government prove its case even if pre-September 18, 2001 evidence is permitted. To illustrate the point, Suleiman concludes with a four-and-a-half page list of pre- and post-September 18th events that contradict the government’s position. Among other things, this compilation points out that Suleiman did not know of Khulud’s Taliban links at the time he met Khulud; that he cut ties with Khulud immediately upon learning of those links, but had no money to return to Yemen; that, although he shot a gun at the “recreational area,” Suleiman did not take part in any fighting between the Taliban and the Northern Alliance, and viewed their conflict as inter-tribal and not of concern to him; that he only fired a few rounds at a wall, from a weapon that is commonly used in Yemen for wedding celebrations; and that, during his exodus from Afghanistan, he briefly carried a gun for protection, but returned it upon arriving in Pakistan.

***

Friday’s panel will consist of Judges David Tatel, Merrick Garland, and Thomas Griffith, and the attorneys for each side will have 15 minutes to present their arguments. Thomas P. Sullivan is expected to argue on Suleiman’s behalf.  John Drennan will argue the government’s position.