Mark Erickson, author of the Norwegian Shooter blog sent me a thoughtful note objecting to Bobby and my discussion of the D.C. Circuit's Salahi decision. I invited him to write up his thoughts as a guest post. He writes as follows:
The Lawfare blog is concerned with the forest of national security law. Justifiably so – the still-evolving case law covers a wide array of dilemmas and opportunities for the Unites States in waging the War on Terror. But the trees exist, too. Each case is a different person and a different set of facts. So it is only inevitable that the specifics of some cases are lost in the forest of commentary regarding recent rulings on the law. Mohammedou Ould Salahi is one of those cases.
I disagree with Robert Chesney and Benjamin Wittes’ comments on the Salahi v. Obama decision by the D.C. Circuit. It isn’t interesting for clarifying the law in general, but for the specific facts of the case. The Bensayah, Awad, and al Adahi decisions subsequent to the district court granting habeas required that two interpretations of law by District Judge James Robertson had to be reversed. These comprise Chesney and Wittes’ first two points: the “command structure” standard and the lack of a totality of evidence approach. These were widely foreseen reversals.
Their third point epitomizes their forest, rather than trees, viewpoint. They lament that “the panel gave only limited guidance on the issue of which party bears the burden on [sic] proof regarding a claimed vitiation of an acknowledged earlier membership in Al Qaeda [sic].” Since it is standard for al-Qaeda recruits to swear bayat to the group upon completing their training, a clear ruling could have wide application. But the court clearly said that the facts of the oath matter more than the general principle:
Although such a presumption may be warranted in some cases, such as where an individual swore allegiance to al-Qaida on September 12, 2001, and was captured soon thereafter, the unique circumstances of Salahi’s case make the government’s proposed presumption inappropriate here. … We conclude only that given the facts of this particular case, Salahi’s oath does not warrant shifting the burden of proof. (slip op. at 10-11)
The two examples given are widely divergent to say the least – oaths made the day after the 9/11 attacks and a decade before them. I would say that every other case considered would fall between those extremes. There is no guidance to be had, so it can’t be an important part of the ruling.
I don’t agree that the legal consideration of the place of capture was important either. Chesney and Wittes claim that the unspoken words of two cases speak loudly: “What is emerging from [Bensayah and Salahi] is a degree of judicial acceptance of detention in non-battlefield cases.” It’s an awful small degree, if it is one at all. The current government policy that the whole world is a battlefield is an incredibly important issue. But it is yet to be addressed in the courts. (Wouldn’t this be an issue for the trial court rather than habeas petitions? And to my knowledge, all of the military commission cases so far involve people captured in Afghanistan.)
On the other hand, the facts of the case are intriguing. But unfortunately, Chesney and Wittes mangle them badly. Compare their summary to what appears in the opinion:
C&W: Salahi is a Mauritanian who first traveled to Afghanistan in 1990 in order to participate in the ongoing conflict there. He received military training from Al Qaeda, and swore an oath of allegiance to it. He left to live in Germany in 1992.
DCC: In December 1990, he traveled from Germany, where he was attending college, to Afghanistan “to support the mujahideen”—Islamic rebels seeking to overthrow Afghanistan’s Soviet-supported Communist government. Salahi Am. Decl. ¶ 5. While in Afghanistan, Salahi attended a training camp run by al-Qaida. … In March 1991, shortly after finishing his training, Salahi swore bayat, an oath of loyalty, to al-Qaida. He left Afghanistan soon after taking this oath but returned in January 1992. Having “heard rumors that the mujahideen had invaded Kabul and started fighting among themselves,” Salahi decided to travel back to Germany in March 1992. (slip op. at 4-5)
C&W: According to the government, Salahi nonetheless continued to serve Al Qaeda by acting as a recruiter in Germany, and in that capacity in 1999 helped persuade three of the eventual 9/11 plotters to travel to Afghanistan to receive training.
DCC: But the district court, having discounted portions of the government’s evidence as unreliable and inconsistent, found only that “Salahi provided lodging for three men for one night at his home in Germany, that one of them was Ramzi bin al-Shibh, and that there was discussion of jihad and Afghanistan.” Salahi, 710 F. Supp. 2d at 11. (slip op. at 6)
C&W: The government also claims that  Salahi assisted an Al Qaeda agent in Germany with the purchase of telecommunications equipment in the 1990s,  sent money to an Al Qaeda agent in Mauritania in this period,  interacted in Montreal with an Al Qaeda cell later linked to the attempted millennium bomb plot, and  upon returning to live in Mauritania explored the possibility of computer-based attacks.
DCC #1: Correct.
DCC #2: Abu Hafs is Salahi’s cousin and is married to the sister of Salahi’s ex-wife. … [I]n December 1997, and then again in December 1998, Salahi transferred $4,000 to Mauritania for Abu Hafs, but the district court noted that “the government relie[d] on nothing but Salahi’s uncorroborated, coerced statements” to tie these money transfers to al-Qaida. Salahi, 710 F. Supp. 2d at 14. (slip op. at 6-7)
DCC #3: Although this Montreal al-Qaida cell has been linked to the unsuccessful Millennium Plot to bomb Los Angeles International Airport, the government does not allege that Salahi participated in that effort. Id. at 14. Much about Salahi’s connections to the Montreal cell remains hazy and disputed, and for its part, the district court concluded that government’s evidence of Salahi’s activities in Canada did not “add [anything] of significance to the proof that Salahi was ‘part of’ al-Qaida.” (slip op. at 7-8)
DCC #4: Technically correct, but consists of considering creating an Internet discussion group, possible subscriptions to email lists, and a document with instructions on planning a denial of service attack (an attempt to make a computer resource unavailable to its intended users). (see slip op. at 8 )
But by far the most interesting fact is not discussed by Chesney and Wittes – or the Circuit Court for that matter. Salahi was arrested by the Mauritanian authorities and held for questioning from September 29, 2001 until October 15. (p. 13-14) He was then released and remained free until he was detained for good on November 20. A news report and a Human Rights Watch report claim that Salahi voluntarily submitted to questioning. Doesn’t it seem relevant to whether Salahi was a “part of” al-Qaeda at the time of his capture that he turned himself in 18 days after 9/11 and he remained available to the authorities for over a month after he was released? Would anyone who considered themselves a “part of” al-Qaeda do this?
And there are still many facts that remain to be found:
For example, does the government’s evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization? See Salahi, 710 F. Supp. 2d at 10–12. Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their “discussion of jihad and Afghanistan”? Id. at 11. Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? See id. at 12–13. Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition? See id. at 13. May the court infer from Salahi’s numerous ties to known al- Qaida operatives that he remained a trusted member of the organization? See id. at 16 (“Salahi . . . associated with at least a half-dozen known al-Qaida members and terrorists and somehow found and lived among or with al-Qaida cell members in Montreal.”); cf. Awad, 608 F.3d at 3 (noting that the al-Qaida fighters Awad joined “treated [him] as one of their own”). With answers to questions like these, which may require additional testimony, the district court will be able to determine in the first instance whether Salahi was or was not “sufficiently involved with [al-Qaida] to be deemed part of it.” Bensayah, 610 F.3d at 725. (slip op. at 14)
In this case, the law is simple. The difficult issue remaining is factual: was Salahi a “part of” al-Qaeda? That decision will be made by the District Court only after further discovery, so it is impossible to guess how it will rule.
I invite readers to comment at my blog, Norwegian Shooter. It has nothing to do with guns, trust me.