Cross v. Obama

• Decision Date: 13 July 2010
• Docket Number: Nos. 09-5333, 09-5339.,s. 09-5333, 09-5339.
• Citation: 613 F.3d 1102
• Parties: Mohammed AL-ADAHI, Detainee, Camp Delta, Guantanamo Bay Naval Station, Guantanamo Bay, Cuba and Miriam Ali Abdullah Al-Haj, next friend of Mohammed Al-adahi, Appellees/Cross-Appellants v. Barack OBAMA, President of the United States, et al., Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

613 F.3d 1102

Mohammed AL-ADAHI, Detainee, Camp Delta, Guantanamo Bay Naval Station, Guantanamo Bay, Cuba and Miriam Ali Abdullah Al-Haj, next friend of Mohammed Al-adahi, Appellees/Cross-Appellants

v.Barack OBAMA, President of the United States, et al., Appellants/Cross-Appellees.

Nos. 09-5333, 09-5339.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 15, 2010.

Decided July 13, 2010.

Appeals from the United States District Court for the District of Columbia (No. 1:05-cv-00280-GK).

Anne Murphy, Attorney, U.S. Department of Justice, argued the cause for appellants/cross-appellees. With her on the briefs were Douglas N. Letter and Robert M. Loeb, Attorneys.

John A. Chandler argued the cause for appellees/cross-appellants. With him on the briefs were Patricia L. Maher and Richard G. Murphy, Jr. Gregory S. Smith entered an appearance.

Before HENDERSON and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

RANDOLPH, Senior Circuit Judge:

In the summer of 2001, a thirty-nine year-old Yemeni security guard took a six-month leave of absence from his job to move to Afghanistan. Leaving his wife and his two children, he stayed at the Kandahar home of his brother-in-law, a close associate of Usama bin Laden. Twice he met personally with bin Laden. From Kandahar he moved into a guesthouse used as a staging area for al-Qaida recruits. He then attended al-Qaida's Al Farouq training camp, where many of the September 11th terrorists had trained.

He traveled between Kabul, Khost, and Kandahar while American forces were launching attacks in Afghanistan. Among other explanations for his movements, he claimed that he had decided to take a vacation. After sustaining injuries requiring his hospitalization, he crossed the Pakistani border on a bus carrying wounded Arab and Pakistani fighters. This man, Mohammed Al-Adahi, who is now a detainee at Guantanamo Bay Naval Base, admits all of this but insists he was not a part of al-Qaida and never fought against the United States. Others identified him as a [redacted] On his petition for a writ of habeas corpus, the district court ordered him released. We reverse.

Pakistani authorities captured Al-Adahi in late 2001. In 2004, a Combatant Status Review Tribunal determined, by a preponderance of evidence, that he was part of al-Qaida. Al-Adahi filed his habeas corpus petition in 2005. In 2008 the Supreme Court ruled that despite statutes depriving the federal courts of jurisdiction to hear habeas petitions from Guantanamo detainees, the Suspension Clause of the Constitution at least preserved the writ as it existed in 1789. Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).

Al-Adahi's habeas petition presented the question whether he was part of al-Qaida and therefore justifiably detained under the Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001). The district court considered the government's two factual returns and Al-Adahi's three traverses, in addition to a substantial record that included intelligence reports, interrogation summaries, expert declarations, and Al-Adahi's direct and cross-examination (transmitted live from Guantanamo). The court found “no reliable evidence in the record that Petitioner was a member of al-Qaida” and ruled that he should be released. Al-Adahi v. Obama, No. 05-280, 2009 WL 2584685 *16 (D.D.C. Aug.21, 2009) (“ Mem.Op.”). The government brought this appeal and Al-Adahi cross-appealed.

The Authorization for Use of Military Force empowers 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Pub.L. No. 107-40, § 2(a). “[A]ll necessary and appropriate force” includes the power to capture and detain those described in the congressional authorization. Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The government may therefore hold at Guantanamo and elsewhere those individuals who are “part of” al-Qaida, the Taliban, or associated forces. See Awad v. Obama, 608 F.3d 1, 11 (D.C.Cir.2010); Al-Bihani v. Obama, 590 F.3d 866, 872, 874-75 (D.C.Cir.2010).

Whether Al-Adahi fit that description was and is the ultimate issue. The obvious preliminary question is what sort of factual showing does the government, or the detainee, have to make? In this court the question is open. Al-Bihani held that the government does not have to prove the legality of detention “beyond a reasonable doubt” or by “clear and convincing evidence.” See 590 F.3d at 878; see also Awad, 608 F.3d at 10-11. Al-Bihani also decided that the preponderance-of-the-evidence standard is constitutionally permissible. 590 F.3d at 878. But we have yet to decide whether that standard is required. Id. at 878 n. 4; see also Awad, 608 F.3d at 11 n. 2.

The district judge in this case adopted the preponderance standard. Mem. Op., 2009 WL 2584685 at *1. Other district judges in our circuit have done the same. See, e.g., Awad, 608 F.3d at 3. Their rationale is unstated. After Boumediene, the district judges met in executive session and decided to coordinate proceedings in Guantanamo habeas cases. See In re Guantanamo Bay Detainee Litig., 577 F.Supp.2d 309, 310 (D.D.C.2008). On November 6, 2008, the coordinating judge issued a Case Management Order. In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, 2008 WL 4858241 (D.D.C. Nov.6, 2008). The Order stated, among other things, that the government should bear the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful. Order at 4. In support, the Order cited Boumediene. But Boumediene held only that the “extent of the showing required of the Government in these cases is a matter to be determined.” 553 U.S. 723, 128 S.Ct. 2229, 2271, 171 L.Ed.2d 41. ¹

Boumediene also held that in determining the scope of the writ, “the analysis may [must?] begin with precedents as of 1789, for the Court has said that ‘at the absolute minimum’ the Clause protects the writ as it existed when the Constitution was drafted and ratified.” Id. at 2248 (quoting INS v. St. Cyr, 533 U.S. 289, 301, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Yet we are aware of no precedents in which eighteenth century English courts adopted a preponderance standard. Even in later statutory habeas cases in this country, that standard was not the norm. For years, in habeas proceedings contesting orders of deportation, the government had to produce only “some evidence to support the order.” St. Cyr, 533 U.S. at 306, 121 S.Ct. 2271; Bakhtriger v. Elwood, 360 F.3d 414, 421 & n. 7 (3d Cir.2004). In such cases courts did not otherwise “review factual determinations made by the Executive.” St. Cyr, 533 U.S. at 306, 121 S.Ct. 2271 (citing Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 35 L.Ed. 1146 (1892)). In habeas petitions challenging selective service decisions, the government also had the minimal burden of providing “some evidence” to support the decision. See Eagles v. U.S. ex rel. Samuels, 329 U.S. 304, 311-12, 67 S.Ct. 313, 91 L.Ed. 308 (1946). Habeas petitions contesting courts martial required the government to show only that the military prisoner had received, in the military tribunal, “full and fair consideration” of the allegations in his habeas petition. See Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). And in response to habeas petitions brought after an individual's arrest, the government had to show only that it had probable cause for the arrest. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 125, 130, 2 L.Ed. 554 (1807).

After oral argument, we ordered the parties to file supplemental briefs discussing “what factual showing” (if any) the government must make to justify detaining Al-Adahi. The supplemental briefs we received were not exactly illuminating. The government stated that “in the circumstances currently presented in this Guantanamo habeas litigation,” a preponderance standard is “appropriate,” Supp. Br. of Appellants at 1, although “a different and more deferential standard may be appropriate in other cases or contexts,” Supp. Reply Br. of Appellants at 2. ² Al-Adahi readily agreed with the government that the preponderance standard should govern his case. Supp. Br. of Appellee at 2-3. We are thus left with no adversary presentation on an important question affecting many pending cases in this court and in the district court. Although we doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that Al-Adahi was part of al-Qaida. 590 F.3d at 878 & n. 4.

The district court divided the government's evidence into five categories in rough chronological order: Al-Adahi's trip to Afghanistan; his meetings with bin Laden; his stay in an al-Qaida guesthouse; his military training at Al Farouq; and his other, later activities in Afghanistan. Mem. Op. at *4. We will generally follow the court's organization, but before we get to the specifics we need to mention an error that affects much of the district court's evaluation of the evidence. The error stems from the court's failure to appreciate conditional probability analysis. United States v. Prandy-Binett, 5 F.3d 558, 558-60 (D.C.Cir.1993) (denying rehearing).

“Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability.” John Allen Paulos, Innumeracy: Mathematical Illiteracy and Its...