Your Lawfare team is ready with pen and paper, and bated breath, to hear oral arguments in the habeas-related appeal of Afghan detainee Obaydullah before the three-judge panel of D.C. Circuit Court of Appeals Chief Judge Merrick Garland and Judges Karen LeCraft Henderson, and David Tatel. We've been here before, and were promptly kicked out, so we're relieved that we're permitted to remain in the courtroom while the parties give their oral arguments on the question of whether the district court below incorrectly rejected the detainee's proffering of new evidence that, in Obaydullah's mind, cast serious doubt on the court's denial of his habeas petition back in 2012. I gave a brief summary of the current round yesterday.
For the full oral argument experience, you can listen to the oral argument here.
The audience can hear papers shuffling as Chief Judge Merrick Garland beckons detainee counsel, Lisa Jaskol, to begin her arguments. Both this court and the lower court, she summarizes, relied upon a certain Staff Sergeant (we'll call him No-Name) to attest to the source of the blood in the car. We now have proof of the blood's source (the birth of Obaydullah's daughter) that undermines that key evidence, she says. She walks the court through her train of thought: No-Name's mischaracterization of that evidence makes all of his testimony suspect.
Judge Tatel is the first to pipe in. We dedicated less than one paragraph of our (35 page) opinion to the blood in the car, he says. Why would new evidence on this tiny point undermine our decision to reject Obaydullah's habeas petition? Jaskol refers back to the opinion's language: "[a]nd even if we eliminate evidence that Obaydullah and/or Bostan 'were seen' driving injured bomb cell members to a hospital, the uncontested fact remains that U.S. soldiers found substantial amounts of blood in the back seat of the car." To her, this line's meaning is clear: the court found the presence of blood in the car significant in finding that Obaydullah was more likely than not a member of Al Qaeda.
Judge Tatel disagrees: the panel didn't see that evidence as critical. Jaskol explains her line of reasoning in more depth: the other evidence---the 23 land mines, the bomb making notebook, Obaydullah's relationship with Karim---wasn't probative on its own, and so the district court found additional support in No-Name's testimony that Obaydullah gave conflicting and inconsistent statements about why he had such evidence at all. Since No-Name's reliability is now up in the air because of our new evidence, any other evidence that traces back to him is now questionable too, Jaskol suggests.
Chief Judge Merrick Garland tags himself in, and offers a little more detail on that evidence. His point is that the bloodied car is rather insignificant in comparison to the buried land mines and the bomb making notebook found in Obaydullah's possession to concluding Obaydullah had ties to Al Qaeda. If three pieces of evidence were the basis for our decision in 2012, is it really an abuse of discretion to say that the third piece of evidence isn't necessary to uphold it? Jaskol concedes the court's point, and Chief Judge Garland presses once more: is it an abuse of discretion to continue to rely on the first two pieces of evidence? Jaskol disagrees with the court's standard of review: as the new evidence pertains to Obaydullah's conduct, the legal question should be reviewed by this court de novo, not under the abuse of discretion standard. And when examining the evidence remaining once the bloodied car is excluded, Jaskol doesn't believe there's enough to justify continuing to detain Obaydullah.
The chief judge pushes back a bit on the detainee's counsel preferred standard of review, and then he tosses the ball back to Judge Tatel, who wants to know if that standard of review is correct for Rule 60(b)(2) motions; Jaskol doesn't have cases on point in the Guantanamo context. In lieu of that, Jaskol says that since the underlying question is whether the detention is lawful, and that's reviewed de novo, the court should use that standard here. Judge Tatel compromises: let's just assume we use de novo review, and we decide in your favor, so we won't have to reach this issue.
Jaskol continues: back in he court's 2012 opinion in this case, it conceded that there may be other explanations for the land mines and the bomb making notebook's being in Obaydullah's possession. Hey, he might have been a free lance bomb maker with zero ties to Al Qaeda, right? But of course, the D.C. Circuit agreed with the district court's conclusions that he was more likely than not a member of Al Qaeda in its first go-round on this case. As she reviews the lower court's findings in this case, Chief Judge Garland interjects: so now you want us to review the district court's findings? What happened to your preference for de novo review?
The detainee's counsel clearly wants the court to scrutinize the district court's 60(b)(2) ruling, and Chief Judge Garland saves her the trouble of finishing her argument: why does this new evidence cast doubt on No-Name's testimony, exactly, he wants to know? Well, he was wrong about Obaydullah and Karim being seen driving wounded Al Qaeda soldiers to the hospital; the blood in the car had an innocent source; and this inference is what caused No-Name to conclude that the pre-raid intelligence indicated Obaydullah was part of Al Qaeda. Chief Judge Garland can easily see how No-Name drew a wrong inference about the source of the blood, but doesn't see how that one misstep brings his larger credibility into question.
Lacking a good response to that, Jaskol attempts to transition, but Chief Judge Garland isn't quite done with this No-Name, No-Credibility argument. Jaskol attempts to bring in arguments she made in the habeas appeal past, but the court blocks her. It's eventually the court, in the voice of Chief Judge Garland, who boils down Jaskol's point about No-Name: knowing the source of the blood in the car is the straw that broke the camel's back---the camel being No-Name's credibility, of course. We hear a terse "Yes" from the detainee counsel, and Benjamin Schultz of the Justice Department rises to take Jaskol's place at the podium.
The government attorney has few words to say: this new evidence is not likely to change the outcome of Obaydullah's habeas petition. And then he's ready for questions. Chief Judge Garland, having warmed up with Ms. Jaskol, is ready to tag in: let's talk about that phrase in our opinion, the "uncontested fact" of the presence of blood in the car that was a factor in our decision to deny a writ of habeas corpus. Schultz suggests looking more broadly at the location of the quotation; that part was primarily addressing why a slight mischaracterization by No-Name wasn't an important mischaracterization. Well, let's be honest here, Judge Garland says, that wasn't a "slight" mischaracterization. Schultz responds that nonetheless, it was not significant to the court's decision to deny Obaydullah the writ, and in the district court's decision on 60(b)(2), the judge didn't even address that particular piece of evidence, relying instead on everything else before him. Judge Tatel isn't buying this. The district court's original habeas opinion refers repeatedly to the blood in the car. Well, of course it was mentioned, says Schultz. But the district court is telling us now, in that 60(b)(2) opinion, that even when it disregards the blood, its calculus hasn't changed. On either abuse of discretion or de novo review, the district court's conclusion is entirely reasonable, the government attorney says.
Returns Judge Garland: the district court's first opinion was based in part on No-Name's testimony that the detainee was seen driving wounded Al Qaeda members to the hospital. That seems pretty significant to the judge, and it was incorrect. That must be stripped from the district court's analysis, yes? Yes, and of course, that's exactly what the district court did, says Schultz, and recaps the district court's reading. And what, asks Chief Judge Garland, about the detainee's arguments that the new evidence raises a credibility issue as to No-Name? It only shows he made a wrong inference, not that he lied, and by the way, detainee counsel didn't bother to make these arguments below.
With her limited rebuttal time, Jaskol addresses the last point made by the government: the government conceded in its response brief that we were making that argument, and thus that's an admission that we were challenging No-Name's credibility in our motion. There's a bit of paper shuffling, and she brings up another aspect of the government's argument: the timeliness of the 60(b)(2) motion. But, she doesn't have anything really to say about this specifically, except to request questions from the court about it. Judge Garland speaks for the court: your briefs were quite clear on this issue. Rather than accept the court's compliment and move on, Jaskol disagrees with the characterization, evoking chuckles from the court and the audience. She even offers to file a supplemental brief, but the court is wary of accepting more paperwork: one page is sufficient, thanks.
All parties agree that there's no need for a closed session, and with that, the day's arguments come to a close.