Late last week, the D.C. Circuit once again reversed a district court decision granting a Guantánamo detainee’s petition for a writ ofhabeas corpus. Hussain Salem Mohammad Almerfedi v. Obama, 2011 U.S. App. LEXIS 11696 (D.D.C. June 10, 2011). In this case, the district court had concluded that the government failed to demonstrate by a preponderance of the evidence that Almerfedi (right) was, as alleged, “part of al Qaeda.” The government argued on appeal that the district court incorrectly determined certain evidence to be unreliable, thereby improperly excluding it from consideration, and failed to give sufficient weight to the evidence it did consider. The D.C. Circuit, in an opinion by Judge Laurence Silberman, concluded that the government had in fact demonstrated by a preponderance of the evidence that Almerfedi could be lawfully detained.As we have discussed, the standard the courts are using to find detention justified is based on either a detainee’s conduct or his membership in a hostile force:

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:

1. 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.

1. 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.

1. 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?

Judge Judith W. Rogers (left) in her concurring opinion agreed Almerfedi was lawfully detained, but took issue with the Circuit Court’s standard of review. In her estimation, the appeals court accorded insufficient deference to the district court’s factual findings regarding the so-called jailhouse gossip, which should only be reversed if clearly erroneous.Apparently, there is other evidence against Almerfedi that was not presented, but that appeared in the Joint Task Force threat assessment ordered by Executive Order 13,492 (Jan. 22, 2009). Nonetheless, an Annual Review Boarddetermined that he was approved for transfer so long as there was an appropriate receiving country. (The difficulties of repatriating the Yemeni detainees, many of whom are subject to such conditional release, is ably discussed here in Benjamin Wittes’ House committee testimony on the situation in Yemen). This was of no moment in the habeas proceedings; Judge Brown noted that the decision to transfer a detainee is different from a decision about the lawfulness of his detention, as tested by the habeasprocess.Once the periodic review process ordered by President Obama in E.O. 13,567 (Mar. 7, 2011) (discussed more fully here) there will be yet another process in place to determine the fate of the Guantánamo detainees. In this process, the evaluation will focus on the lawfulness of continued detention in light of a detainee’s future dangerousness, rather than the legality of the detention authority asserted or the lawfulness of the initial decision to detain. The Department of Defense is in the process of drafting implementing guidelines to govern this process. Query to what extent, if any, findings of fact and conclusions of law reached in the habeasproceedings should be preclusive in the Periodic Review Board proceedings. Stay tuned.