A decision last week by the federal appeals court in Washington, rejecting yet another Guantánamo detainee’s challenge to his continued confinement, left barely a ripple in the vast, still pond of Guantánamo litigation. Yet its very ordinariness makes the case of Ali v. Obama worth a few minutes’ consideration as another detention year, the 12th, draws to a close.
This particular detainee, an Algerian named Abdul Razak Ali, was captured in Faisalabad, Pakistan in March 2002 and ended up at Guantánamo three months later. Classified as an enemy combatant, Mr. Ali, who also goes by the name Saeed Bakhouche, has not been formally charged. The rejection of his habeas corpus petition by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit came just a few weeks after the 10th anniversary of the federal judiciary’s involvement with the detention regime at Guantánamo.
It was on Nov. 10, 2003, that the Supreme Court surprised much of the legal world by agreeing to hear appeals from two groups of men held at the island prison that the Bush administration had set up in the belief that it would remain outside the reach of American judges. The Supreme Court’s unexpected assertion of jurisdiction was a leap into the unknown.
In their willingness to take on the political branches, were the justices about to become de facto field marshals in the “war on terror,” calibrating by themselves the balance between the competing claims of liberty and security? It was possible to think so, as the Bush administration proceeded to lose three rounds of cases in the Supreme Court, culminating in Boumediene v. Bush, the 2008 decision that established the detainees’ right to seek release through petitions for habeas corpus. After Boumediene, the political system held its breath for the next step. Would the court back off? Where would it end?
It’s ending, in all probability, with cases like Ali v. Obama, cases no one is holding their breath for any longer, cases hardly anyone even notices these days.
These habeas corpus cases turn on whether the government can prove to the satisfaction of the D.C. Circuit that the detainee fits the definition of those properly subject to detention. This is a two-part inquiry. The first part is the definition itself, based initially on the Authorization for the Use of Military Force, which Congress enacted a week after the Sept. 11 attacks. The second part is the burden of proof the government has to shoulder in proving that the detainee fits the definition.
Both parts have been hotly contested, but the Ali case strongly suggests that the contest is over. Some background is necessary to understand why.
The Authorization for the Use of Military Force allowed the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” While Congress spoke of force, and not detention, the Supreme Court in 2004 held that the power to detain those who were “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan was an inherent part of the power to use military force there that Congress had granted.
There then began a series of tweaks and incremental expansions to the definition. The Bush administration’s Defense Department asserted the power to detain as an enemy combatant “an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces, that are engaged in hostilities against the United States or its coalition partners.” This definition included “any person who has committed a belligerent act or has directly supported hostilities in aid of enemy forces.”
The Obama administration, in a memorandum issued shortly after the president took office, provided that the support had to be “substantial” and not “insignificant.” But the memo made clear that the definition applied anywhere in the world and was “not limited to persons captured on the battlefields of Afghanistan” or to those “directly participating in hostilities.”
Congress weighed in again in the National Defense Authorization Act for the 2012 fiscal year, amending the original Authorization for the Use of Military Force to cover detention of those who were “a part of or substantially supported Al Qaeda, the Taliban, or associated forces.” This definition included “any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
These different iterations, each building subtly on what had gone before, have left plenty of room for judicial interpretation. The D.C. Circuit, with exclusive jurisdiction over the Guantánamo habeas cases, has jumped into the gaps. It has endorsed the government’s view that evidence should be viewed holistically, as a composite, even if individual pieces are missing or might have a benign explanation.
The Ali case exemplified this approach. For example, when he was captured, Mr. Ali was staying at a guesthouse with Abu Zubaydah, an Osama bin Laden ally who is now one of the highest of high-value detainees at Guantánamo. Mr. Ali had been at the four-bedroom house for 18 days, and was studying English. The Zubaydah forces were known to teach English to terrorists in training, and others who were later determined to be enemy combatants had been captured at the same or similar houses.
The D.C. Circuit rejected the argument by Mr. Ali’s lawyers that it was applying a standard of “guilt by guesthouse.” The court said that “determining whether an individual is part of Al Qaeda, the Taliban, or an associated force almost always requires drawing inferences from circumstantial evidence, such as that individual’s personal associations.” Mr. Ali, Judge Brett M. Kavanaugh’s opinion concluded, “more likely than not was part of Abu Zubaydah’s force.”
The “more likely than not” burden of proof — formally, a “preponderance of the evidence” — is the other part of the habeas corpus inquiry. This is a low burden of proof —– far lower than the criminal-law standard of “beyond a reasonable doubt” — but it isn’t the lowest. The D.C. Circuit’s judges have debated among themselves whether they shouldn’t be satisfied anytime the government presents some evidence that can be deemed “substantial,” even if it doesn’t measure up to “more likely than not.” But because the Obama administration hasn’t challenged the “preponderance” burden or sought a lower one, the appeals court’s conservative members have grudgingly acquiesced to continuing to use preponderance.
In effect, however, “the preponderance of the evidence and substantial evidence standards have come to be conflated,” one member of the D.C. Circuit, Judge Harry T. Edwards, its former chief judge, complained in an opinion in June. He was concurring only with the result, but not the reasoning, of a decision that rejected the habeas corpus petition of a Yemeni detainee, Abdul al-Qader Ahmed Hussain, held at Guantánamo since early 2002. The other two judges on the panel, Karen LeCraft Henderson and Thomas B. Griffith, said it was appropriate to draw inferences from the facts the government presented about Mr. Hussain’s travels, affiliations and multiple stays in mosques owned by a Qaeda-affiliated Islamic missionary group, Jama’at al-Tablighi, known as J.T. These facts, the two judges said, supported the conclusion that Mr. Hussain, a teenager at the time of his capture, was “a part of Al Qaeda or the Taliban when he was captured.”
Judge Edwards objected, quoting from the Authorization for the Use of Military Force, that “there is not one iota of evidence that Hussain ‘planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons.’ ” The government failed to carry its ostensible preponderance-of-the-evidence burden, Judge Edwards said. “I am disquieted by our jurisprudence,’ he added. “The time has come for the president and Congress to give serious consideration to a different approach for the handling of Guantánamo detainee cases.”
Mr. Hussain’s lawyers filed a Supreme Court appeal last month, challenging the appeals court’s use of what they called “a watered-down burden of proof.” The appeal argues, “This effective application of a lower standard denied Hussain the ‘meaningful review’ of his detention mandated by this court in Boumediene v. Bush.” The government’s response to the petition is due Dec. 26.
Judge Edwards was also a member of the panel that decided the Ali case last week. While agreeing with the result, which he said was compelled by the circuit’s precedents, he again wrote a separate opinion. He said that the “personal associations” test the majority applied was “well beyond” the detention definition prescribed by Congress in the Authorization for the Use of Military Force and the more recent amendment. “It seems bizarre, to say the least,” Judge Edwards said, “that someone like Ali, who has never been charged with or found guilty of a criminal act and who has never ‘planned, authorized, committed or aided any terrorist attacks,’ is now marked for a life sentence.” He said the circuit had “stretched the meaning” of the congressional enactments “so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded Ali are functionally useless.”
Readers of this column may have noticed that I write about Guantánamo every few months, even as it fades ever further from public concern. While the Ali decision prompted these reflections on how we got to where we are today, there is another reason as well.
This was the final week of a semester during which I’ve been co-teaching a law school course about the judicial responses to the issues raised by Guantánamo.
During the final class meeting, one student, noting that the Guantánamo population has shrunk even as urgent human rights crises that place many more people at risk have erupted in other parts of the world, asked the deliberately provocative and not entirely rhetorical question, Why should we continue to care about Guantánamo?
The ensuing conversation was as lively as it was gratifying. Rather quickly, a consensus emerged: We care because the Guantánamo saga isn’t only about the 162 men still held there, or the hundreds who have come and gone. It’s about the health of our own institutions, our own commitments. We look in the mirror of Guantánamo and see ourselves.