nationalsecuritylaw Almerfedi v. Obama (D.C. Cir. June 10, 2011) (reversing grant of habeas to GTMO detainee)

* Almerfedi v. Obama (D.C. Circ. June 10, 2011) (reversing grant of habeas to GTMO detainee)

In an opinion by Judge Silberman (joined by Judge Kavanaugh, with Judge Rogers concurring in part and concurring in the judgment), the D.C. Circuit has reversed a grant of habeas to a GTMO detainee and concluded that as a matter of law the government carried its burden of proof. A few points of interest:

– Judge Silberman concludes that whether the government satisfied its burden below is a mixed question of law and fact, with the specific factual determinations subject to clear error review but the ultimate determination of detainability being a legal question subject to de novo review

– Judge Silberman offers the following examples of evidence that would suffice to justify detention:

As an example, if the only evidence the government offered in a particular case was that a petitioner had been apprehended with an AK-47 in rural Afghanistan – which would be at least probative – it would not be sufficient to establish a basis for detention. Possession of a rifle is commonplace in Afghanistan, and therefore does not meaningfully distinguish an al Qaeda associate from an innocent civilian. But the government could satisfy its burden by showing that an individual was captured carrying an AK-47 on a route typically used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora Bora in late 2001). And, of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly” would carry the government’s burden. See Al-Bihani, 590 F.3d at 873 n.2. (slip op. at 10 n.7)

– turning to the evidence against Almerfedi, Judge Silberman concluded that it was enough that Almerfedi (i) had stayed at the Jama’at Tablighi organization’s guesthouse in Pakistan, (ii) traveled in Iran in ways that did not seem consistent with his professed desire to move to Europe, and (ii) had $2000 of unexplained funds on his person when captured. (slip op at 10-11) Judge Silberman notes that the district court did not credit Almerfedi’s explanation for these events, but the district court erred in not holding that conclusion against Almerfedi.

– Judge Silberman concludes that the district judge also erred in dismissing as unreliable the statements of another GTMO detainee to whom Almerfedi allegedly made certain inculpatory statements.

Judge Rogers, in her concurrence, agrees that the government met its burden of proof based on the three factors cited above (his stay in Pakistan, his travel in Iran, and the $2000, plus evidence that al Qaeda did have a guesthouse in Iran). She writes separately, however, because she does not agree with the majority’s conclusion that it was error for the district court to reject as unreliable the statements from the other GTMO detainee repeating what Almerfedi allegedly had said to him. In brief, her objection is that the Circuit should use a clear error standard on review, not something more akin to de novo review.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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