1 new GTMO habeas denial, 1 new grant, and 1 opinion just released in relation to a denial back in March

* one new GTMO habeas denial, one old one the opinion for which just became public, and one new habeas grant

Al-Warafi v. Obama (D.D.C. Mar. 24, 2010) (Lamberth) (habeas denied) (note: I posted news of this denial back on March 25, but the opinion has only just now become available)

The 21-page opinion is posted here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv2368-16

Judge Lamberth concluded that the government proved by a preponderance of the evidence that Al-Warafi was a Taliban member subject to detention under the AUMF. Al Warafi had argued in the first instance that he was not part of the Taliban but rather a volunteer medical worker in Afghanistan, and in the alternative that even if a Taliban member his capacity as a medical worker should have spared him detention.

Among the interesting aspects of the opinion, it:

– explicitly rejects the proposition that the government must show the person to be a danger if released in order to detain him

– accepts that Al-Warafi’s interrogation statements were reliable. Al-Warafi did not allege coercion or taint from prior coercion. Judge Lamberth noted the consistency of these statements with his ARB statements, but did not explicitly indicate that corroboration had been required for the interrogation statements to be deemed reliable

– finds unreliable certain statements summarized from Al Warafi’s ARB proceeding and his habeas declaration, on the grounds of inconsistency with one another

– finds unreliable various inculpatory statements made by other detainees about Al Warafi, as the government had “not assured the court that these statements were not coerced” (and one declarant was deemed unreliable by the government itself)

– finds that the reliable evidence showed that Al Warafi had traveled to Afghanistan to fight for the Taliban, received weapons training, volunteered to serve as a medic “as needed”, and surrendered at Mazar-e-Sharif under orders from a Taliban commander

– rejects Al Warafi’s First Geneva Convention Art. 24 argument (to the effect that medical personnel may not be detained), on the ground that section 5 of the MCA forbids reliance on the Geneva Conventions as a source of rights in legal proceedings, and thus as the Circuit held in Al Bihani that detainability must be determined with reference solely to domestic law sources)

Abdah v. Obama (D.D.C. Apr. 8, 2010) (Kennedy) (habeas denied)

No opinion available publicly yet, but the order memorializing the denial of the writ to Yasein Khasem Mohammad Esmail (ISN 522) appears here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-801

Salahi v. Obama (D.D.C. Apr. 9, 2010) (Robertson) (habeas granted)

The 32-page opinion granting habeas to Salahi is posted here:

From the opinion: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0569-319

There’s a lot of interesting and important stuff going on here, so rather than try a summary I instead have copied into the text the key passages (other than the actual evidentiary discussions):

The government’s case, essentially, is that Salahi was so connected to al-Qaida for a decade beginning in 1990 that he must have been “part of” al-Qaida at the time of his capture. The allegations are that Salahi was a recruiter for al-Qaida -that indeed he recruited two of the men who became 9/11 hijackers and a third who became a 9/11 coordinator; that he actively supported his cousin, who is or was one of Osarna Bin Laden’s spiritual advisorsj that he carried out orders to develop al-Qaida’s telecommunications capacity; and that he had connections with an al-Qaida cell in Montreal. Salahi concedes that he traveled to Afghanistan in early 1990 to fight jihad against communistsl and that there he swore bayat to al-Qaida. He maintains, however, that his association with al-Qaida ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaida members, he did nothing for al-Qaida after that time. Tr. Exh. BBB. The government’s case relies heavily on statements made by Salahi himself, but the reliability of those statements -most of them now retracted by Salahi is open to question.

[fn 2] The government also argued at first that Salahi was also detainable under the uaided in 9/11″ prong of the AUMF, but it has now abandoned that theory, acknowledging that Salah! probably did not even know about the 9/11 attacks.

The “purposeful[] and material[] support” standard is a non-starter. As the following discussion will make clear, Salahi may very well have been an al-Qaida sympathizer, and the evidence does show that he provided some support to al-Qaida, or to people he knew to be al-Qaida. Such support was sporadic, however, and, at the time of his capture, non-existent. In any event, what the standard approved in AI-Bihani actually covers is “those who purposefully and materially supported such forces in hostilities against U.s. Coalition partners.” 530 F.3d at 872 (emphasis added). The evidence in this record cannot possibly be stretched far enough to fit that test.

The question of when a detainee must have been a “part of” al-Qaida to be detainable is at the center of this case, because it is clear that Salahi was at one point a sworn al-Qaida member.

The government was not required to produce evidence of some affirmative “part of al-Qaida” act by the petitioner that took place after 9/11. 6 A mechanical requirement of that kind would lead to the illogical and dangerous result that a proven “sleeper agent” who was actually sleeping on and after 9/11 could not be detained. Gherebi, 609 F. Supp. 2d at 67. It is undisputed that Salahi swore bayat and was a member of al-Qaida in 1990, but the government had to show that he was still (or again) within its command structure when he was captured on November III 2001.

Salahi’s admission that he once was part of al-Qaida but that he severed his ties after 1992 raises burden-of-proof questions: May the burden lawfully be shifted to Salahi to prove his dis-association? If so, at what point does the burden shift?

A habeas court must consider the government’s factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant. It is only fair to the petitioner, however -and, considering the government’s built-in advantage, not unfair to the government -to view the government’s showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence. [FN:] I have rejected the government’s broadest assertion, that Salahi’s concession of al-Qaida membership in the early 1990’s shifted the burden of proof, requiring that he prove affirmative acts of disassociation to show that he was not a member in 2001. It is true, as I observed at the close of the hearing, Hr. Tr. 644-45, 651, that Salahi has adduced no evidence that he rejectedH al-Qaida -that he acted affirmatively to sever his ties -but I have been persuaded, see Petitioner’s Closing Sr. at 13-14, that he did not need to. The criminal law of withdrawal from a conspiracy has no place in this proceeding, and in any case, the al-Qaida that Salahi joined in 1991 was very different from the al-Qaida that turned against the United States in the latter part of the 1990s.

The government acknowledges that Salahi’s abusive treatment could diminish the reliability of some of his statements. But abuse and coercive interrogation methods do not throw a blanket over every statement, no matter when given, or to whom, or under what circumstances. Allegations of mistreatment certainly taint petitioner’s statements, raising questions about their reliability.

Here, it is the government’s burden to demonstrate that a particular statement was not the product of coercion, and that it has other indicia of reliability. Anam, 2010 WL 58965 at *5. The government submits that the only statements of Salahi’s on which it relies were made after a clean break, and after the passage of enough time to attenuate any taint, and that they are corroborated by documentary evidence and the statements of other persons (some of them detainees). Salahi attacks corroborating statements as unreliable hearsay, or subject to the same coercive tactics described above, or both.

The government had to adduce evidence -which is different from intelligence -showing that it was more likely than not that Salahi was Upart of” al-Qaida. To do so, it had to show that the support Salahi undoubtedly did provide from time to time was provided within al-Qaida’s command structure. The government has not done so. The government has shown that Salahi was an al-Qaida sympathizer -perhaps a “fellow traveler”; that he was in touch with al-Qaida members; and that from time to time, before his capture, he provided sporadic support to members of al-Qaida. The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, 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. Salahi fought with al-Qaida in Afghanistan (twenty years ago) , 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. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future -any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaida. On the record before me, I cannot find that he was.


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