Memo to the D.C. Circuit: Staying at a guesthouse is not the same as taking military training.
Ever since the D.C. Circuit's decision in Al Bihani last year, its opinions have repeated some language that was originally buried in a footnote in Judge Janice Rogers Brown's opinion in that case concerning how the courts should treat "evidence suggesting that [a detainee] attended Al Qaeda training camps in Afghanistan and visited Al Qaeda guesthouses." Judge Brown--writing for herself and Judge Brett Kavanaugh--noted that "evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen." The language was by no means a holding, but it has nonetheless become part of the court's boilerplate language in subsequent opinions about the scope of detention authority. In yesterday's Almerfedi decision, for example, Judge Laurence Silberman, also in a footnote and citing Al Bihani, wrote that, "of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse 'overwhelmingly' would carry the government's burden."
The court's emerging doctrine on this point seems to me to reflect an unexamined assumption--and one that I think is empirically flawed. So readers should consider this my amicus brief to the D.C. Circuit on the general question of what weight guesthouse attendance and terrorist training should carry in Guantanamo habeas cases. To put the matter simply, I think the court should treat them differently from one another--and should treat neither the way the Bihani language proposes.
The two factual issues are linked for two reasons--first, because they are both recurrent facts that arise in a great many of these habeas cases, and second, because both guesthouse stays and training reflect elements of the Al Qaeda recruitment process. In the years before September 11, young Muslim men would be routed by recruiters and facilitators to Afghanistan, generally traveling through Pakistan; they would stay in guesthouses in both Pakistan and Afghanistan, and from those guesthouses would be sent on to training camps. After a period of training, the more promising ones would be sent on to more specialized terrorist training, while others would be attached to units fighting for the Taliban. The apparent logic of the D.C. Circuit's doctrinal point here is that someone who went through either of these recruitment processes would, by virtue of that fact alone, very likely have become "part of" the enemy.
In my view, at least, this premise is complicated but crudely accurate with respect to training, but it is far less accurate with respect to guesthouse stays. Were it up to me, I would arrange the doctrine modestly differently with respect to training and quite differently with respect to guesthouse stays.
While both guesthouse stays and training are parts of the recruitment process, they are very different parts of it--and they reflect different levels of commitment. Taking training reflects a conscious decision to receive military instruction from a particular group. Just as someone who goes to basic training in the U.S. military can be reasonably presumed to have joined up, someone who trained at Al Farouq has cast his lot with the jihadis. The only question in my mind after someone has been to Al Farouq or some similar camp is whether that person later broke with the enemy--a question that can be quite difficult to answer sometimes. But I have no doubt that absent a later break, taking training from a group reflects a sufficient level of joining up so as to make a person "part of" that group. Because of the possibility of a later break, a factual claim made in many habeas cases, it overstates the matter to say that training alone "overwhelmingly" supports a detention. The better approach for the court, in my view, would be to treat the fact of training as establishing that the detainee became, at that time, part of the enemy and creating a rebuttable presumption of a detainee's remaining part of it until the time of capture--a presumption that would shift the burden of proof to the detainee to prove that he quit at some point between training and capture.
A guesthouse stay is quite different. It takes place, in most cases, at an earlier phase of the recruitment process. Some people stayed in guesthouses but got spooked and left before they made it to training camps. In and of itself, a guesthouse stay reflects only a very minimal associational commitment. Some people in guesthouses--even real Al Qaeda safe-houses--were actual guests. Someone who stayed in a guesthouse could be anything from a hard-core terrorist to an early-phase recruit to someone who has socially fallen in with the wrong crowd--which is now trying to recruit him--to, in one famous case, someone who came over for dinner, stayed the night, and got caught in a raid on the house. I don't doubt that a guesthouse stay is probative of membership, sometimes very probative. But on its own, it strikes me as far from "overwhelming" evidence in support of a detention; indeed, unlike training, it does not even in my view create a presumption of membership, and it should not shift the burden of persuasion to the detainee. The court, rather, should treat it only as one probative indicator of a relationship between an individual and a group--one that may well suggest, in combination with other things, that a detainee joined up but is not alone proof of that claim.