Why Salahi is Important

By Benjamin Wittes
Wednesday, September 15, 2010, 1:33 PM

I posted earlier a summary by Larkin Reynolds of the coming argument in Salahi v. Obama--which the D.C. Circuit is hearing on Friday. I also posted the briefs. I think this case is a big deal, one that stands to make a significant mark on the law of detention. For those readers in the press, it has been undercovered and warrants more attention than it has received. It is not simply a tally on the scorecard (one that I believe will, one way or another, go from the detainee win column to the government win column). It's a case that will affect other cases. Here's why.

Let's start with the fact that Salahi may be a very dangerous guy. The district court judge, even in granting the writ, made some startling factual findings about him. He swore an oath of loyalty (bayat) to Osama Bin Laden. He hosted some of the 9/11 hijackers and plotters at his house. He wired money on behalf of a senior Al Qaeda leader. He spent time hobnobbing with several important Al Qaeda terrorists, including the perpetrator of the attempted 2000 bombing of LAX. As Judge James Robertson ominously put it in nonetheless rejecting his detention, "the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. That concern may indeed be well-founded." This is not, in short, the case of someone who, if the government is right, is some low-grade fighter who went to Afghanistan as the cannon fodder of international jihad--or a cook for the canon fodder of international jihad. This is, if the government is right, the kind of person we're all worried about.

As a result of his undisputed oath of bayat, Salahi's case raises rather starkly a question that lurks in the background of many habeas cases: What does it take for a court to find that a relationship between a detainee and an enemy group that would support a detention if that relationship remained active, has been vitiated so that it no longer supports the detention? This may seem like a question that would come up only infrequently, but it actually crops up all the time. It is, in fact, one of the most important unresolved foundational questions in the emerging law of detention.

Salahi's presentation of it is extreme: He admits to having sworn bayat to Bin Laden in the early 1990s, and there is evidence that he maintained relations with Al Qaeda figures in the years that followed. While there is no evidence that he affirmatively withdrew from the group, the contacts and support he provided in the years after his oath, however, are only episodic. This fact caused Judge Robertson to treat the relationship as though the conceded membership had lapsed over time. The case thus presents acutely the question of who has the burden of proof concerning a claimed vitiation of membership. Once the government has shown that a detainee joined a group covered by the AUMF, does the detainee then bear the burden of proving that he left? Or, in the alternative, does the government bear the burden of proving that the membership was still active at the time of the detainee's capture?

As I say, this question shows up in many Guantanamo cases--albeit often in less dramatic form than it does here. The government can show that a given detainee attended a training camp and hung out at some guest houses, for example, but it cannot show much about what he did afterwards. The detainee, meanwhile, claims that he checked out the jihadist movement, didn't much like it, and left. Does this pattern of evidence support a detention or does it constitute a vitiated membership? Judges have swung both ways on this question. Salahi's case offers the D.C. Circuit an important opportunity to give guidance on vitiation.

The case is also important as a follow-on to the Circuit's recent decision in Al Adahi on the question of how courts should evaluate evidence in general in these cases. The Court in Al Adahi sent a very strong message to the district court that it should lighten up on the government. It ridiculed the district judge in that case for having examined pieces of evidence in isolation from one another and for having ignored the likelihood of the detainee's membership given the facts that it found. But Al Adahi was the work of a particularly conservative panel, so the question of whether the rest of the D.C. Circuit will adopt its approach to evidence thus inevitably arises. The district court opinion here cannot possibly survive the approach the appeals court took in Al Adahi. The only way Judge Robertson's opinion can be sustained would be for the court to move away from the Al Adahi approach and parse evidence more finely and in a more atomized fashion. So the case also raises the question of whether the Al Adahi approach represents the institutional posture of the court of appeals or whether it represents one pole of D.C. Circuit opinion.

Finally, the case is important in that it will begin to define what it means to be an Al Qaeda operative, rather than an enemy fighter, in habeas law. Almost all of the cases to date--with Bensayah as a notable and not-very-illuminating exception--have concerned people who allegedly traveled to Afghanistan to join enemy fighting forces. These cases are important both substantively and numerically, but they don't involve the most dangerous people the United States holds. The most dangerous people, rather, are terrorist operatives, not battlefield figures. And their stories will tend not to follow the usual trope of recruitment by a radical imam, travel to a guest house in Afghanistan, training at a camp, and then attachment to enemy fighting forces. Rather, the stories will tend to be more idiosyncratic and individualized both in a narrative sense and in a geographic sense--more, that is, like Salahi's. Yet precisely because so few of these cases have gone to disposition, the courts have not had a good opportunity to develop standards concerning what fact patterns will and will not establish a preponderance of the evidence that someone is "part of" Al Qaeda--at least not when we are talking about Al Qaeda the global terrorist organization, rather than Al Qaeda the regional military force that fought alongside the Taliban against U.S. and Northern Alliance forces nine years ago. This case will begin to do that. The gravamen of the allegations against Salahi have little to do with military operations in Afghanistan. They have much more to do with conduct in Germany and Canada and Mauritania. The case will thus shed great light on what the D.C. Circuit believes the government needs to prove in order to lock someone up in military detention for largely non-battlefield-related terrorist ties.

I fully expect that the D.C. Circuit will reverse this decision. The facts, in my opinion at least, overwhelmingly support the detention. I simply cannot see how someone who engaged in the pattern of conduct that Salahi engaged in is not more likely than not to be "part of" Al Qaeda, and I will be very surprised if the D.C. Circuit takes a different view. I will be following this case closely less for the bottom-line outcome than for the manner in which that outcome comes about. In particular, I will be looking for the extent to which Judges David Sentelle and David Tatel--who are both on the panel, both eclectic on these issues, and who have admirably found important common ground with one another in a number of these cases in the past--can jointly add clarity on the questions I've outlined here.