Uthman Abdul Rahim Mohammed Uthman is in trouble. Facing a relatively congenial D.C. Circuit panel for a Guantanamo detainee and represented by counsel who did an excellent job presenting his case, he made no headway. He will be lucky if he emerges with his district court habeas win vacated and remanded--rather than reversed outright. If that outright reversal were to happen, a lot of other Guantanamo detainees are going to share his pain. His case could end up lowering the substantive bar for the government to prevail in these habeas cases. As I explained yesterday the factual and legal backdrop for the case, I will assume reader familiarity with it here.
Judge Merrick Garland opens the hearing by announcing that it will begin in open session and will proceed to classified arguments afterwards. Dana Kaersvang rises for the government and argues, following her brief, that the district court applied the wrong legal standard in the case. At a minimum, this error requires a remand, she says. The government's evidence, however, is strong enough for the court to reverse outright instead. U.S. District Judge Henry Kennedy decided the case, she notes, before the D.C. Circuit's clarification in Bensayah and other cases of the proper standard for determining if someone is "part of" the enemy. As a result, Judge Kennedy required the government to prove that Uthman received and executed orders from the enemy. Since then, however, the appeals court has repeatedly said that following enemy orders is sufficient but not necessary evidence to prove that someone is "part of" the enemy. The D.C. Circuit's test is functional, she argues, and the court has considered probative associational evidence in both Al Adahi and in Awad. Judge Kennedy dismissed this sort of evidence in this case, and his decision cannot survive the changed appellate standards.
Judge Thomas Griffith asks whether she is aware of any case in which the court has denied habeas solely on the basis of circumstantial evidence. Kaersvang responds that it depends what one means by circumstantial. The court in Al Adahi, she notes, insisted that the evidence--including the circumstantial evidence--be looked at as a whole. And in Awad, the evidence was mostly circumstantial, involving the detainee's travel and associations, until the detainee ended up behind a barricade while very sick. But, Griffith pushes, this case seems different. There is no AK-47. There isn't really anything except the travel and the associations. Kaersvang responds, in essence, that it's not just any travel and any association at issue here. The guy ended up with a group of Al Qaeda fighters in the vicinity of the Tora Bora mountains, after all.
Judge Brett Kavanaugh cuts in here and asks whether this is alone enough to justify his detention. Kaersvang says she does not know. That would be a hard case, but it's not her case. Judge Kennedy, after all, found a lot more than just capture in the vicinity of Tora Bora.
Judge Griffith then asks how close to the battle of Tora Bora Uthman was captured. Kaersvang says she does not know specifically. Judge Garland wants to know how Uthman's path through the mountains--instead of along a paved road out of Afghanistan--compares with the path of another detainee, Al Odah, in whose case the D.C. Circuit saw a march through the Tora Bora mountains with enemy fighters as evidence of the detainee's being part of enemy forces. He quips that both seem to have taken "the long way home." Kaersvang says she does not know how the details compare, but the outlines do seem similar. And, she notes, Al Odah and Uthman came to Afghanistan along similar paths too. What's more, she slips in, Uthman had his travel from Yemen to Afghanistan paid for by Sheik Mukbil Al-Wadi.
Judge Griffith asks here whether this point is disputed, and Kaersvang responds that the district court found it as a matter of fact. And she notes as well that while Uthman says in his declaration that he paid for his travel with money he saved from a summer job, he had conceded in interrogations that Sheik Al-Wadi paid his way. What is disputed, she says, is whether Sheik Al-Wadi is a supporter of jihad--a matter on which the government had submitted significant evidence. There is no question, she insists, that Uthman lied in his declaration when he said that Sheik Al-Wadi did not pay for his travel. And in Al Adahi, the court found that false exculpatory statements could be strong evidence of enemy affiliation.
Judge Griffith points out that unlike in Al Adahi, here Judge Kennedy--in a footnote--made clear that he had weighed the impact of the detainee's credibility. Kaersvang responds that Judge Kennedy in that footnote was only considering Uthman's statements about his teaching activities in Afghanistan, not his statements about his travel. This is a guy, after all, who stayed for a long time in Kabul after the fighting started and then, when he finally decided to flee, fled not along a paved road that goes directly to Pakistan but through the mountains--along a path followed by fighters. Griffith asks whether he is correct that the record only establishes that Uthman was in the vicinity of Tora Bora, not in it. Kaersvang responds that Uthman says he was in the mountains, and that one of the people with whom he was captured, himself a fighter, described the men with whom he was traveling as a "group of brothers."
Judge Garland, at this point, notes that some of the evidence Kaersvang is raising here involves matters on which the district court made findings, and some involves government evidence Judge Kennedy didn't address. Kaersvang concedes this point, reiterating the points that Judge Kennedy specifically found and noting that he didn't mention, for example, that Uthman couldn't identify any of the students he was supposedly teaching. Garland here says that part of the problem in the case is that the district court actually issued two opinions, and that the classified and unclassified versions are different from one another. (Readers interested in this point should look at this article by Propublica's Dafna Linzer.) Is Kaersvang arguing that the five basic factors found by the district court in the unclassified version are sufficient to find him detainable? Or is she saying there are other findings in the opinions that are important as well? Kaersvang says her position is that in addition to the five items specifically cited in the opinion's summation, which are themselves sufficient for detention in the government's view, there are other findings that ought to be considered as well. Taken all together, she argues, the evidence requires the court to find Uthman to be part of Al Qaeda and reverse Judge Kennedy outright. At a minimum, however, the judge's use of the command structure legal standard requires a remand.
Judge Kavanaugh at this point throws Kaersvang a curve ball. Should the standard for detention be the same today as if this hearing were held years ago? Does the standard for detention go up as detention goes on for, say, 10, 20, 30 or 40 years? Kaersvang is clearly not prepared for this question. She sputters that the government is just trying to apply the law as the court has articulated it. She then asks to consult with her co-counsel, does so momentarily, and returns. There is an ongoing conflict right now, so it's clear that the government has the authority under the laws of war and the AUMF to detain Uthman, and the executive branch has a review process for detentions, she says. Kaersvang then says that she will reserve the balance of her time for rebuttal--and then, noticing that she has no remaining time, ends with a charming "or not."
Anthony J. Phillips begins his argument for Uthman by declaring that this is not a close case. All of the major questions, he says, were resolved by the district court, and the government has abandoned those arguments at the appeals court level. What's left, he says, is the "tattered remnants" of a case that used to be about a supposed bodyguard for Osama Bin Laden.
Judge Garland cuts him off. Just because the allegations used to be really strong doesn't mean that's what's left can't be pretty strong, he says. The question is whether Judge Kennedy applied the wrong legal standard here. Phillips says it is clear that he did not adopt a requirement that the government prove the detainee had received and executed orders. Judge Garland is not buying this. He quotes back at Phillips Judge Kennedy's language, which seems very clearly to identify it as the central question. Isn't it at least unclear, Garland asks, whether he's applying a command structure test? Phillips does not budge. It's not unclear, he says. Judge Kennedy certainly considered whether Uthman received and executed orders, but he also considered other things. And he concluded ultimately that the facts even together do not establish a likelihood of his being part of the enemy. Judge Garland is clearly unpersuaded. It's not Judge Kennedy's fault, he notes; the law was very unclear at that point. But the opinion appears to explain what Judge Kennedy believed the law to have been and identifies this as the "key" question. Phillips points out that he doesn't identify it as the only question. But Judge Garland comes back at him with the word "key." Phillips concedes no more than that Judge Kennedy treated it as an important question. Besides, he says, the Gherebi test the lower court applied was a very functional test, and it's clear from the text of the opinion that Judge Kennedy went beyond the Gherebi standard. He considered the evidence as a whole. The question he was asking was whether the evidence as a whole showed that Uthman was "part of" Al Qaeda.
Judge Kavanaugh here comes back to one of the questions he discussed with Kaersvang--whether being captured at Tora Bora was alone good enough for detention. Judge Kennedy, he notes, said that few if any non-combatants would have been there. Well, if few if any people would have been there innocently, isn't it then more likely than not that Uthman was not there innocently? We are, after all, talking about Tora Bora in December of 2001.
Not in Tora Bora, Phillips corrects him. Uthman was twelve miles away and in a different country when he was caught. Judge Kavanaugh dismisses the international border in question as a porous affair that doesn't have a great deal of meaning.
Judge Garland is also skeptical. Uthman traveled through the mountains to get out of Afghanistan when there was a flat paved road available to him. What's the explanation for that? He relied on his interpreters and guides, says Phillips, and they led him astray. Judge Garland asks why they would do that. It is mere conjecture, Phillips says, but there is some indication in the record that they may have been collecting Arabs to turn over to the Pakistani forces for bounties. Judge Garland points out that if that were the plan, the flat roads were a safer way to travel. The roads, responds Phillips, were being targeted.
Judge Kavanaugh now returns to the other theme he raised with Kaersvang. Is your position, he asks Phillips, that Uthman's detention would have been illegal had we reviewed it years ago? Phillips responds that this is not the case at hand, but Judge Kavanaugh pushes. We have to treat it like it is, right? There's no floating test for detention in which the standard goes up with time. Phillips says that standards for detention in a war zone are one thing. Nine years later in a court is something else. Judge Kavanaugh notes that he is then putting stress on the elapsed time, and Phillips acknowledges that it would be different if it were a week after capture. Judge Kavanaugh asks why. And Phillips says that the government has had nine years to corroborate some of this evidence and had five days of hearings to support its allegations.
Judge Kavanaugh then shifts gears. Is it not more likely than not that someone with Uthman's travel patterns is part of Al Qaeda? Judge Griffith adds that it seems particularly so given that Uthman made numerous contradictory statements. He notes that the D.C. Circuit has case law that treats false exculpatory statements as evidence in the government's favor.
Phillips dismisses the travel pattern. Uthman followed the travel pattern that anyone would have taken into Afghanistan, he says. The pattern is vastly different from the detainee travel patterns in other cases, because it doesn't tend to show recruitment. He didn't end up at training camp. Indeed, the government can't show any role that he was playing in Al Qaeda or the Taliban. What's more, it's not clear that he told conflicting stories. His statements have been, rather, dramatically consistent over eight years. And with respect to the one exception to that rule, his admission in interrogations that his travel had been paid for by Sheik Al-Wadi, he was compelled to say that. There are no inconsistent statements about how he lost his passport; he has consistently said he didn't know. Judge Kennedy, Phillips notes, never found that Uthman lied. He found only that some aspects of his statements were not entirely believable. But he was talking here about a particular detail, not about his general story.
What about, Judge Garland asks, his inability to remember the names of his supposed students? The court has relied on the implausibility of such memory lapses in other cases. Phillips says the court should focus on the actual evidence. He knew what school he had taught at and could describe it. Ditto his employer.
Judge Garland asks him about the fact that people with whom he was captured admitted to being Bin Laden bodyguards. Phillips acknowledges the point. Those are not just Al Qaeda people, Judge Garland points out. Is that worth nothing? Surely it's somewhat persuasive that he was captured with two people who are so trusted that they were allowed to serve as bodyguards for Bin Laden. Phillips responds that this is nothing more than circumstantial evidence. But all of the evidence in these cases is circumstantial, Judge Garland says. And the courts have made clear even in the criminal context that there is nothing wrong with circumstantial evidence. Besides, what would non-circumstantial evidence in a case like this even look like? Phillips answers that a detainee who reliably said that he was a bodyguard would present such evidence about himself. Judge Garland quips that the detainee who confesses is not going to produce a habeas case and thus not going to be before the court.
Judge Garland at this point reveals something of his hand. You say the case isn't close, he says to Phillips. Suppose we thought it is close and that the standard Judge Kennedy offered was unclear. Shouldn't we remand it? Phillips says a remand is unnecessary and would just require going over the same evidence. Judge Garland points out that Judge Kennedy himself included verbiage in his opinion suggesting it was a difficult case. If there's some possibility that he applied the wrong standard, isn't it possible the case would have come out differently under the right standard? Why not send it back? What was difficult, Phillips responds, was not the standard. It was going through the mountain of evidence. Judge Garland dismisses this. That's not what Judge Kennedy said, he insists.
Phillips insists for his part that Judge Kennedy was very careful, and Judge Garland agrees. There's no question that he was careful, but there are questions on which he didn't rule. Phillips says he is not sure that's true. Judge Kennedy considered Uthman's credibility. This is not a case like Al Adahi; there's nothing in the record remotely like a meeting between his client and Bin Laden, he says. Phillips thus concludes a strong argument that left me with the distinct impression that all of the panel members are at least leaning against him.
Kaersvang rises for a brief, blood-in-the-water rebuttal. There is no evidence, she says, of any bounty in this case. Uthman was traveling with six people--probably 30, really, but he said six. So the government submitted evidence on the six. Four went to school, as he did, at the Furqan Institute in Yemen. One of those people said he was proud to be a Bin Laden bodyguard. Two said they were bodyguards. Two admitted that they fought for the Taliban. One admitted training at the Al Farouq training camp. One admitted fighting at Tora Bora. This is very strong evidence that this "group of brothers," as one of the detainees called it, was a group of fighters. Kaersvang ends by declaring that the government sees no reason to proceed with the closed session.
Judge Garland asks her whether she will persist in that position if he tells her that she will lose without the closed session. No, Kaersvang responds. If that's his view, then she would say that she wants to go into closed session and talk about whatever is on the court's mind. And with that, the public session ends.
I see next to no possibility, following this argument, of Judge Kennedy's opinion being affirmed. Judge Kavanaugh seemed principally interested in two points--that the proper inquiry today is the same as the inquiry when Uthman was caught and that the site and circumstances of his capture may alone justify his detention--both of which would seem to imply outright reversal. Judge Garland seemed persuaded by the government's claim that Judge Kennedy used the wrong legal standard, and openly toyed with remanding the case. And Judge Griffith, while not tipping his hand in any detail, certainly gave little sign of eagerness to affirm. For a variety of reasons, I suspect a remand is the most likely outcome here, but if I were a member of the habeas bar, this case would make me very nervous. It could end up making it far easier for the government to justify a detention based on relatively spare associational and travel activities. Such a holding would significantly reduce the number of detainees who can plausibly expect to win their habeas cases.