Peter Finn and Del Quentin Wilber, Washington Post
A 2008 Supreme Court ruling allowing those held at Guantanamo Bay to challenge their detention was followed by an initial round of district court rulings that ordered the release of dozens of suspected militants after the government’s evidence was found wanting.
The appeals court has not only reversed judgments against the government but also compelled the lower courts to assess evidence in a manner that is much more sympathetic to government arguments. In one ruling, the appellate judges said that lower courts should consider that “two unreliable pieces of information may corroborate each other.”
“The D.C. Circuit is much more deferential to the government than the district courts are, on average,” said Benjamin Wittes, a senior fellow at the Brookings Institution, who has written extensively on detention issues. “And there is a tolerance for the idea that these judgments may end up being imperfect.”
These cases often turn on whether prosecutors can prove that a “preponderance of evidence” shows that a detainee was “a part of or substantially supported” al-Qaeda or the Taliban and was in the armed forces of those groups when captured.
That burden of proof is significantly lower than what is required in criminal courts, where evidence must be “beyond a reasonable doubt.” But even so, prosecutors in the Guantanamo Bay detainee cases often failed the “preponderance of evidence’’ standard, according to U.S. District Court judges in Washington, where 38 detainees won cases.
Many more cases from among the 170 detainees remaining at Guantanamo Bay are in the pipeline, but now the government is winning.
In one case, Hussain Salem Mohammed Almerfedi, a Yemeni who was arrested in Iran and turned over to Afghan authorities and then to the United States, argued that he was an economic refugee who was attempting to get to Western Europe when he was picked up by the Iranians in late 2001.
In July 2010, U.S. District Court Judge Paul L. Friedman ruled that the evidence against him was too weak to justify his continued detention.
The Supreme Court’s 2008 ruling, in Boumediene v. Bush, extended habeas to Guantanamo Bay detainees and gave wide latitude to lower courts in determining how to handle the cases.
District court judges soon began to rule against the government with some frequency, but as early as February 2009, a three-judge panel ruled that federal district judges do not have the authority to order the release of a detainee into the United States. Several subsequent decisions have strengthened the government’s ability to detain.
In January 2010, in its first review of a detainee case, the Circuit Court rejected the idea that international laws of war — which limit whom governments can confine during conflicts — applies to the detainees at Guantanamo Bay. That cleared the way for the government to hold captives if they were “part of” or supported al-Qaeda and the Taliban regardless of the extent of their involvement in the conflict.
The detainee in that case — Ghaleb Nassar al-Bihani, a Yemeni who traveled to Afghanistan in response to a religious call by a Saudi cleric in 2001 — admitted to being a cook for the 55th Arab Brigade, a group of al-Qaeda fighters, and staying at al-Qaeda guesthouses.
“This decision means that al-Bihani could be detained as ‘part of’ al-Qaeda without any regard for what he did for al-Qaeda,” said Stephen I. Vladeck, a law professor at American University who was part of the legal team that challenged the Bush administration’s use of military commissions at Guantanamo Bay. “Whether or not you held a gun or participated in plotting a particular attack, the D.C. Circuit has decided that when you prove membership, it’s divorced from substance.”
That has made the appeals court much less likely to accept the explanations of detainees who say they were in Afghanistan for charitable work or purposes other than fighting.
In one case, Judge Brett M. Kavanaugh, reversing a lower court ruling granting habeas, said the account of Uthman Abdul Rahim Mohammed Uthman, a Yemeni captured at the Afghan-Pakistani border near Tora Bora on Dec. 15, 2001, “piles coincidence upon coincidence upon coincidence.”
John O’Quinn, a former senior Justice Department official in the Bush administration, said the lack of dissent among appellate judges makes it harder for detainee lawyers to get the Supreme Court to take their cases. Indeed, the Supreme Court has rejected all efforts to revisit the habeas litigation.
For defense lawyers, there is a mounting sense of futility. The D.C. Circuit “appears to be dead-set against allowing detainees to prevail,” said David Remes, one of Almerfedi’s lawyers. “But as long as we have any arguments available to us, we have a duty to our clients to press them. We have to fight. This is the avenue our system provides us. And it’s the only system we have.”