Sulayman v. Obama (D.D.C. July 20, 2010) (denying habeas to GTMO detainee)

August 6, 2010

* Sulayman v. Obama (D.D.C. July 20, 2010) (denying habeas to GTMO detainee)

In an opinion that has just been released in unclassified form, Judge Walton on July 20th denied habeas relief to GTMO detainee Abd Al Rahman Abdu Abu Al Ghayth

Sulayman (ISN 223). The opinion runs 43 pages—click here to read it—and addresses a host of important legal issues in addition to the evidentiary questions in that particular case.

The highlights:

– Judge Walton’s April 2009 decision in Gherebi had adopted a test for detainability requiring the government to show that a detainee was part of the command structure of an AUMF-covered entity (al Qeada, for example). Here, Judge Walton acknowledges that the Circuit’s recent decisions in al Bihani and Awad reject that approach, and thus that the district judges must deny habeas petitions if the government can prove that the detainee: (i) engaged in hostilities against the United States, (ii) directly and materially supported someone else in doing so, or (iii) is part of an AUMF-covered group.

– Judge Walton noted that the Circuit also has repeatedly raised the possibility that the government might satisfy its burden with something less than the preponderance of the evidence, but he says it is unnecessary to address that issue here since the government’s evidence in any event suffices to satisfy the preponderance test.

– With respect to the weight to be given hearsay statement:

“The upshot from all of these decisions is that for each hearsay statement that the government seeks to rely upon in this proceeding that is not otherwise admissible under the Federal Rules of Evidence or 28 U.S.c. § 2246, it must establish the reliability of those statements by making the following showing:

(1) that with regards to the specific statements that the government seeks to rely upon, those statements "were made under circumstances that render them intrinsically reliable or were made by reliable sources";

(2) that "with respect to statements crucial to the government’s case, that it would be unduly burdensome to call the sources as witnesses or provide declarations under oath in lieu of live testimony";

(3) "that the statements purportedly made by these sources were interpreted by a reliable interpreter," e.g., "an interpreter who works for the FBI or who has an ILR score of at least 3 in English," unless the statement being interpreted is one "that a person with an ILR score of 2+ would reasonably be able to understand and articulate in English"; and

(4) "that the interpreted statements were recorded by the interrogator in a manner that is reliable," and that in cases involving statements crucial to the government’s case, such a showing be made by the interrogator’s live testimony, the submission of "a declaration or affidavit approximating such testimony," or, "as a last resort, … a global affidavit describing the process used by interrogators," unless the government can show that it would be an undue burden to comply with this requirement….

If the government cannot meet at least one of these four requirements with respect to each document that it seeks to rely upon in justifying the petitioner’s detention, then the Court will not ascribe any probative weight to that evidence absent compelling reasons to the contrary.”

– “[T]he Court does conclude that the government, by a preponderance of the evidence, has established the following facts which, along with the reasonable inferences that can be drawn from those facts, establishes the lawfulness of the petitioner’s detention, namely, (1) that a Taliban operative encouraged and facilitated the petitioner’s travel to Afghanistan (via Pakistan) by providing him with money, a passport, and an airplane ticket; (2) that the petitioner either visited or stayed at several guesthouses affiliated with the Taliban; and (3) that the petitioner traveled to, and remained in, an area near the front lines of armed conflict in Afghanistan.”

– “Thus, based on the evidence presented by the parties in this case, the Court concludes that the government has proffered more than enough evidence to establish that the petitioner traveled to an area near the front lines on at least two occasions, and that in both instances he took possession of a firearm from an individual who was also likely "part of" the Taliban. And, for the reasons explained above, the most reasonable inference that the Court can draw from these facts is that there was a mutual understanding amongst all who were present at the "staging area" that the petitioner was a one of them. The Court, therefore, concludes that these facts present overwhelming, if not definitive, evidence that the petitioner was a "part of’ the Taliban armed forces.”