Bensayah v. Obama (D.C. Cir. June 28, 2010) (reversing denial of habeas, remanding for consideration of alternate ground/evidence)

July 2, 2010

* Bensayah v. Obama (D.C. Cir. June 28, 2010) (reversing denial of habeas to GTMO detainee, remanding for consideration of alternative ground/evidence)

In a 17-page redacted opinion posted here, a D.C. Circuit panel (Ginsburg, joined by Henderson and Edwards) has reversed a district court decision that had denied habeas relief to Belkacem Bensayah (who, as you may recall, was the only one of the six petitioners from the Boumediene v. Bush litigation who did not receive habeas relief on the merits after remand from the Supreme Court’s 2008 decision in that case).

Judge Leon had found that the government had adequate evidence to prove that Bensayah had supported al Qaeda by facilitating travel, and found it unnecessary to determine if the government could also prove that he was himself “part of” al Qaeda. For reasons that aren’t at all clear from this week’s opinion, however, the government on appeal gave up on the “support” theory. Instead, it appears the government rested its argument on the claim that Bensayah was functionally part of al Qaeda.

This may or may not have mattered to the result here. The panel’s opinion is a bit hard to follow because of redactions, but the long and short of it is something like this:

– there is a single item of evidence that directly inculpates Bensayah, something that is sufficiently unclear as to its source as to require corroboration in order to carry the government’s burden

– the question both at the district court and on appeal is whether there is sufficient corroboration in the record for this purpose

– it appears that the government has withdrawn its reliance on some aspect of the corroborating evidence that the district judge had relied upon below, making its position more difficult on appeal of course

– the panel was not terribly impressed with the corroborative impact of the remaining evidence, finding it insufficient

Note that the panel did not remand with instructions to grant the writ. Instead, the opinion calls for a new merits hearing, with new evidence on the question of membership in al Qaeda if any turns out to be possible.

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