Al Adahi v. Obama (D.C. Cir. June 13, 2010) (first reversal of a GTMO habeas grant)

* Al Adahi v. Obama (D.C. Cir. June 13, 2010) (reversal of GTMO habeas grant)

A D.C. Circuit panel (Randolph, joined by Henderson and Kavanaugh) for the first time has reversed a district court decision granting habeas to a GTMO detainee, with instructions to the district court to deny the writ instead. Previously, Circuit panels have affirmed the denial of habeas (al-Bihani, Awad), and reversed a denial with instructions to reconsider (Bensayah).

The 19-page opinion is here. Key passages (please note that Acrobat had trouble with character recognition in copying text from this pdf, so you might find some weird typos below – be sure to refer to the original linked document, of course):

In the summer of 2001, a thirty-nine year-old Yemeni security guard took a six-month leave of absence from his job to move to Afghanistan. Leaving his wife and his two children, he stayed at the Kandahar home of his brother-in-law, a close associate of Usama bin Laden. Twice he met personally with bin Laden. From Kandahar he moved into a guesthouse used as a staging area for al-Qaida recruits. He then attended al-Qaida’s A1 Farouq training camp, where many of the September 1 lth terrorists had trained. He traveled between Kabul, Khost, and Kandahar while American

forces were launching attacks in Afghanistan. Among other explanations for his movements, he claimed that he had decided to take a vacation. After sustaining injuries requiring his hospitalization, he crossed the Pakistani border on a bus carrying wounded Arab and Pakistani fighters. This man, Mohammed Al-Adahi, who is now a detainee at Guantanamo Bay Naval

Base, admits all of this but insists he was not a part of al-Qaida and never fough against the United States.

Although we doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that Al-Adahi was part of al-Qaida.

[B]efore we get to the specifics we need to mention an error that affects much of the district court’s evaluation of the evidence. The error stems from the court’s failure to appreciate conditional probability analysis. …”Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability." JOHN ALLENP AULOSI, NNUMERACYM:A THEMATICAILLL ITERACY AND ITS CONSEQUENC6E3S (1988). The key consideration is that although some events are independent (coin flips, for example), other events are dependent: "the occurrence of one of them makes the occurrence ofthe other more or less likely . . . ." …Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist. Prandy-Binett, 5 F.3d at 559-60. This is precisely how the district court proceeded in this case: Al- Adahi’s ties to bin Laden "cannot prove" he was part of Al- Qaida and this evidence therefore "must not distract the Court." Mem. Op. at 18. The fact that Al-Adahi stayed in an al-Qaida guesthouse "is not in itself sufficient to justify detention." Id. At 20. Al-Adahi’s attendance at an al-Qaida training camp "is not sufficient to carry the Government’s burden of showing that hewas a part" of al-Qaida. Id. at 25. And so on. The government is right: the district court wrongly "required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court’s entire analysis." Br. Of Appellants at 42. Having tossed aside the government’s evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that "there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban." Mem. Op. at 41. When the evidence is properly considered, it becomes clear that Al-Adahi was – at the very least – more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard.

The court characterized the rest of the evidence about Al-Adahi’s meetings with bin Laden as "sensational and compelling" but not "actual, reliable evidence that would justifl" detention. Mem. Op. at 41. The court’s statements are incomprehensible. On what possible ground can the court say that the evidence on this subject was,on the one hand, "compelling," and yet say, on the other hand,

that it was not "actual" and "reliable"? All that comes to mind is the idea that two personal meetings with bin Laden are not enough to prove that an individual is part of al-Qaida. If that is what the court intended, then it was once again engaging in the mistaken reasoning we mentioned in connection with conditional probability analysis.

The district court dealt with this evidence in the following way: "the guesthouse evidence is not in itself sufficient to justify detention." Mem. Op. at 20. Note the "not in itself." Again the court erred. Al-Adahi’s voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely – indeed, very likely – that Al-Adahi was himself a recruit. There is no other sensible explanation for his actions. This is why we wrote in Al- Bihani that an individual’s attendance at an al-Qaida guesthouse is powerful – indeed "overwhelming[]" – evidence that the individual was part of al-Qaida. 590 F.3d at 873 n.2. Al-Adahi left the guesthouse after a few days and, as expected, entered al-Qaida’s A1 Farouq training camp. By then it was August 200 1. At least eight of the September 1 1 th hijackers had trained at A1 Farouq. While Al-Adahi was there,he received training in rocket-propelled grenades, other weapons, and basic physical fitness, as well as some classroom instruction. His statements to interrogators indicated that he had a deep knowledge of the operation of A1 Farouq. He described

camp leaders in a manner that showed he was familiar with them; he reported details of the camp’s training regimen and layout; and he identified the types of weapons used for training.

He also knew the training routines of other recruits. The district court seemed to think it important to determine Al-Adahi’s motive for attending the al-Qaida training camp. We do not understand why. Whatever his motive, the significant points are that al-Qaida was intent on attacking the United States and its allies, that bin Laden had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that Al-Adahi voluntarily affiliated himself with al-Qaida. [EMPHASIS ADDED] According to Al-Adahi, he stayed at A1 Farouq for seven to ten days, and then was expelled for smoking tobacco, a violation of a camp rule. The government introduced evidence casting doubt on Al-Adahi’s explanation for leaving the camp. This evidence – which included Al-Adahi’s own statements – showed that trainees expelled from A1 Farouq were treated as spies and beaten. Al-Adahi left A1 Farouq unharmed. His story was that

the camp’s instructors treated him gently because they were close to his brother-in-law Riyadh. The government offered another explanation. Al-Adahi did not spend a great deal of time in the camp because he needed little training. He was not a green, untested, recruit. He had served in the Yemeni army, and he had been working as a security guard in Yemen. As to his loyalty to the al-Qaida cause, his sister was married to one of bin Laden’s most trusted associates.

The court appeared to rule that an individual must embrace every tenet of al-Qaida before United States forces may detain him. There is no such requirement. See Awad, slip op. at 19. When the government shows that an individual received and executed orders from al-Qaida members in a training camp, that evidence is sufficient (but not necessary) to prove that the individual has affiliated himself with al-Qaida. See id. ; Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009). Al-Adahi’s statements confirm that he received and followed orders whilehe was at A1 Farouq. His attendance at an al-Qaida military training camp is therefore – to put it mildly – strong evidence that he was part of al-Qaida. In Al-Bihani, we stated that if a person stays in an al-Qaida guesthouse or attends an al-Qaida training camp, this constitutes "overwhelming" evidence that the United States had authority to detain that person. 590 F.3d at873 n.2

The district court ended its discussion of Al-Adahi’s training at A1 Farouq with the following statement: Al-Adahi’s "admission that he trained at A1 Farouq is not sufficient to carry the Government’s burden of showing that he was a part, or substantial supporter, of enemy forces." Id. at 25. We disagree that this evidence, standing alone, was insufficient. See Al-Bihani, 590 F.3d at 873 n.2. In any event, we are sure that the court erred in treating this evidence as if it stood alone.

Al-Adahi also claims his statements should be suppressed pursuant to the Third Geneva Convention. Even if the Convention had been incorporated into domestic U.S. law and even if it provided an exclusionary rule, Congress has provided explicitly that the Convention’s provisions are not privately enforceable in habeas proceedings. See Military Commissions Act of 2006 5 5, Pub. L. No. 109-366, 120 Stat. 263 1-32; Noriega v. Pastrana, 564 F.3d 1290, 1296-97 (1 lth Cir. 2009); Boumediene v. Bush, 476 F.3d 981, 988 n.5 (D.C. Cir.2007).


One Response to Al Adahi v. Obama (D.C. Cir. June 13, 2010) (first reversal of a GTMO habeas grant)

  1. […] The Supreme Court today declined to review the D.C. Circuit’s opinion in al-Adahi v. Obama (June 13, 2010) (reversing a grant of habeas and instructing the district court to dismiss the petition). My original post summarizing the circuit opinion, and linking to it, is here. […]

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