June 11, 2011
A judge for the US Court of Appeals for the District of Columbia Circuit on Friday overturned the release of Yemeni Guantanamo Bay detainee Hussein Salem Mohammed Almerfedi. After his capture in 2001 and detention at Guantanamo Bay, Almerfedi filed a petition for a writ of habeas corpus which was granted by a lower court. The government had argued that Almerfedi was a supporter of al Qaeda because of his travels toPakistan that indicated strong ties to the group. However, the court concluded that the government had not met its burden to show by a preponderance of the evidence that Almerfedi was part of al Qaeda. On the contrary, the appeals court took a holistic approach and agreed that the government had met its burden of proof by a preponderance of evidence that Almerfedi was, in fact, part of al Qaeda:
First, Almerfedi acknowledges that he stayed for two and a half months at Jama’at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity “closely aligned” with al Qaeda. … [Second] if we add Almerfedi’s travel route, which is quite at odds with his professed desire to travel to Europe (and brought him closer to the Afghan border where al Qaeda was fighting), and also that he had at least $2,000 of unexplained cash on his person when captured … the government’s case that Almerfedi is an al Qaeda facilitator is on firmer ground. … We conclude that all three facts,when considered together, are adequate to carry the government’s burden of deploying credible evidence that the habeas petitioner meets the enemy-combatant criteria.
The court relied heavily on the notion that circumstantial evidence is often sufficient enough to keep a prisoner detained.
There have been over 200 writs of habeas corpus filed on behalf of Guantanamo Bay detainees. Last month, a federal appeals court denied habeas corpus to Guantanamo Bay detainee Musa’ab Omar al-Madhwani, concluding that he was lawfully detained for being part of al Qaeda. In March, an appeals courtblocked the release of Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman by overturning a district court decision that claimed the government had failed to prove prove by a preponderance of the evidence that Uthman had received and executed orders from al Qaeda. In September, Kuwaiti Guantanamo detainee Fawzi Khalid Abdullah Fahad al Odah petitioned the US Supreme Court to reverse a federal appeals court decision that denied him habeas corpus relief. The DC appeals court denied habeas corpus relief to al Odah in July. The court affirmed the district court’s ruling that there was sufficient evidence against al Odah for him to be considered “part of” al Qaeda and Taliban forces.
-LaToya Sawyer, JURIST
New Habeas Ruling—Overturning the District Court Again
The government may detain any individual ‘engaged in hostilities … against the United States [who] purposefully and materially supported hostilities against the United States or its coalition partners [or who] is part of the Taliban, al Qaeda, or associated forces.
This finding must be made on the basis of a preponderance of the evidence standard of proof:
The preponderance standard instead asks the court simply to “make a comparative judgment about the evidence” to determine whether a proposition is more likely true than not true based on the evidence in the record.
In other words, the party with the burden of proof must support its position with “the greater weight of the evidence.” In so doing, the district court must make a judgment about the persuasiveness of the evidence offered and then decide whether it is more likely than not that the particular petitioner meets the detention standard.
The bulk of the evidence against Almerfedi (a Yemeni who was detained in Tehran and then turned over the Afghani authorities in March 2002) came from his own admissions and the statements of another detainee. The Circuit Court justified his detention on the basis of three pieces of evidence:
- Stays at Al Qaeda-affiliated guest houses. Almerfedi admitted to an extended stay at a guest house run by Jama’at Tablighi, an Islamic missionary organization that has been designated as a Terrorist Support Entity—not without controversy—by the U.S. government. The government also contended that another detainee (who has since been repatriated to Saudi Arabia despite evidence that he received terrorist training and led armed militants in Tora Bora after 9/11) stated that Almerfedi had also stayed at an Al Qaeda-affiliated guesthouse in Iran. Almerfedi disputed this, arguing that he was captured prior to the time that he is alleged to have stayed in this guesthouse. The district court considered this “jail house gossip” to be unreliable. The Circuit Court determined that the district court erred in this regard, but also concluded that the other evidence against Almerfedi was sufficient to meet the government’s burden.
- Travel Route. Almerfedi indicated that he was in Iran in an effort to get to Europe. Nonetheless, he took a rather circuitous travel route, which included two established Al Qaeda travel nodes and was in the direction of Afghanistan rather than Turkey, allegedly at the behest of a “guide” he had paid to facilitate this trip.
- Cash. He was in possession of $2,000 at the time of capture without explanation.
There was nothing in the record evidence concerning training or hostile conduct. Nonetheless, per the appeals court, these pieces of circumstantial evidence—when taken together—were “damning.” Indeed, the appeals court noted that false or dubious exculpatory statements amount to evidence in favor of the government. At times, however, the DC Circuit seemed to shift the burden of proof when it noted that the petitioner could not offer a credible explanation for his travels or his cash on hand. Indeed, the weak evidence presented by the government in this case raises the question:
will any detainee ever win their case before the DC Circuit?