Awad v. Obama (D.C. Cir. June 8, 2010) (affirming denial of habeas)

June 9, 2010

* Awad v. Obama (D.C. Cir. June 8, 2010) (affirming denial of habeas to GTMO detainee)

A D.C. Circuit panel (Sentelle, joined by Garland and Silberman) has affirmed the denial of habeas relief to GTMO detainee Adham Mohammed Ali Awad, in a partially-redacted 20-page opinion available here.

The key points and excerpts follow:

– The panel rejects Awad’s argument that the district court should not have relied on hearsay, citing both Al Bihani and Hamdi.

– The panel found no clear error in the district judge’s assessment of the evidence

– The panel summed up the evidence as follows:

To summarize, the evidence before the district court was that: Awad traveled to Afghanistan for the purpose of fighting against U.S. and allied forces; he was with the a1 Qaeda fighters behind the barricade in the hospital; he was surrendered by the a1 Qaeda fighters; a1 Joudi, who was there, identified him as being one of the a1 Qaeda fighters; a1 Joudi’s statements were corroborated by documentary evidence; and Awad’s name appeared in two highly relevant pieces of documentary evidence. Additionally, contemporaneous newspaper reports identified Awad as one of the a1 Qaeda fighters. Against this evidence, the district court had only Awad’s self-serving statements of innocence, which the district court, as finder of fact, did not credit.

– The panel rejected Awad’s argument that the government should be held to a clear-and-convincing evidence standard, stating that the constitutional sufficiency of a preponderance standard already was determined by the earlier panel decision in Al Bihani (and also citing Hamdi). The panel noted that in the D.C. Circuit the decision of a prior panel is binding on subsequent panels. And again following Al Bihani, the panel noted in a footnote that the sufficiency of the preponderance standard does not foreclose the possibility that a lesser standard also might withstand constitutional review.

– The panel rejected Awad’s argument that the government should have to prove that he poses a threat going forward if he were to be released, again citing al Bihani.

Al-Bihani makes plain that the United States’s authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities.

– The panel also rejected Awad’s argument that the government must at least prove that Awad was part of al Qaeda’s “command structure,” not just that he was part of al Qaeda.

He argues that there must be a specific factual finding that he was part of the "command structure" of a1 Qaeda. There is no such requirement under the AUMF. … Nowhere in the AUMF is there a mention of command structure.

The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the "command structure" of a1 Qaeda, this satisfies the requirement to show that he was "part of’ a1 Qaeda. But there are ways other than making a "command structure" showing to prove that a detainee is "part of’ a1 Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of a1 Qaeda, it would be immaterial to the government’s authority to detain these people whether they were part of the "command structure" of a1 Qaeda. Once Awad was "part of’ a1 Qaeda by joining the a1 Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. [citing Al-Bihani]…. Awad points us to no authority from this court or the Supreme Court that would counsel a different decision.