Almerfedi is a big deal--though perhaps subtly. Judge Laurence Silberman's opinion continues a trend, begun by Judge Brett Kavanaugh in Uthman, of clarifying just how little the preponderance of the evidence standard really requires of the government. This question was a big theme of Silberman's comments at oral arguments, and the opinion--while less flamboyant on the point than were Judge Silberman's questions--will reverberate throughout the lower court in future cases. And importantly, the court is not divided on this point. Judge Judith Rogers disagrees with the majority on an important evidentiary question, she agrees with the judgment itself, and her analysis of the evidence and its relationship to the preponderance standard is not profoundly different from Silberman's. This is a very bad day for detainees--and a very good day for the government.
Let me explain.
The case against Hussain Almerfedi is very thin--thinner even than the case against Uthman. The court says this explicitly. Judge Silberman notes that previous cases did not require the D.C. Circuit to think hard about the minimum quantum of evidence necessary to satisfy the preponderance standard:
the government’s evidence may well have been stronger in previous cases than in this case. But that is irrelevant; all of those cases were not close. . . . We listed all the evidence supporting the government in those cases without needing to consider the minimum amount of evidence that would establish a preponderance.
Precisely because this case is weaker, it forces consideration of that question--and the answer turns out to be that the government does not need much. It does not need certainty, Silberman emphasizes. It does not need to prove its case beyond a reasonable doubt. It does not even need to show that its factual claims are "actually true." Rather, under the preponderance standard, "the court makes a judgment about the persuasiveness of the evidence offered by each party and decides whether it is more likely than not that the petitioner meets the detention standard." The government's evidence, Silberman makes clear, much "meet at least some minimum threshold of persuasiveness. But that is worlds apart from the beyond a reasonable doubt standard as the evidence need not convince the court of the doubtless merit of the detention."
In a footnote, Silberman goes on to speculate about what sort of evidence would and would not satisfy this standard:
As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan--which would be at least probative--it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. . . . And, 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. . . .
What evidence satisfies him in this case?
First, Almerfedi acknowledges that he stayed for two and a half months at Jama’at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity “closely aligned” with al Qaeda. . . . He asserts he refused to join the organization and remained largely incommunicado, but he stayed there for free. Although that evidence is probative, by itself it presumably would not be sufficient to carry the government’s burden because there are surely some persons associated with Jama’at Tablighi who are not affiliated with al-Qaeda. But if we add Almerfedi’s travel route, which is quite at odds with his professed desire to travel to Europe (and brought him closer to the Afghan border where al Qaeda was fighting), and also that he had at least $2,000 of unexplained cash on his person when captured, notwithstanding his claim to have given that much to Ali (which was all he brought from Yemen), the government’s case that Almerfedi is an al Qaeda facilitator is on firmer ground.
We conclude that all three facts, when considered together . . . are adequate to carry the government’s burden of deploying “credible evidence that the habeas petitioner meets the enemy-combatant criteria,” . . . . We consistently have found such circumstantial evidence damning . . . and sufficient to distinguish a petitioner from the “errant tourist, embedded journalist, or local aid worker.” So too here.
Silberman goes on to discuss some other matters--including the incredibility of Almerfedi's story. But this passage is important because he makes clear that this material would alone be enough. And as I noted at the outset, this basic position provokes no dissent. Judge Rogers begins her partial concurrence by saying that she joins the court,
in holding that the government met its burden of proof to show by a preponderance of the evidence that its detention of petitioner Hussain Almerfedi is lawful based on the evidence in the record regarding: (1) Almerfedi’s two and one half month stay at the Jama’at Tablighi center in Lahore, Pakistan; (2) his eastward travel from Tehran to Mashad near the Afghan border in late 2001 or early 2002, which was 500 miles in the opposite direction of his purported destination of Greece via Turkey; (3) his possession upon his capture thereafter in Tehran of a large unexplained sum of money; and (4) undisputed evidence about the existence of Bin Laden-funded “guesthouses” in Tehran and the use of hotels in Mashad as waystations for fighters traveling to or fleeing from Afghanistan.
Put simply, the government has won based on a remarkably thin showing. The bar for detention keeps getting lower.