Thursday, April 28, 2011

On the Enemy Combatant Front...

Since the Supreme Court decided Boumediene (see our prior coverage here, here, here, here), the district courts of the District of Columbia have been hearing petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay. The Circuit Court of Appeals for the D.C. Circuit has been equally busy with habeas appeals, reversing many lower court opinions granting the detainee's petition. In the absence of further guidance from the Supreme Court and the political branches, the D.C. Circuit is thus producing a veritable common law of law-of-war detention in non-international armed conflicts, such as the conflict with al Qaeda.
By way of background, following Hamdi, the courts have analyzed the propriety of law-of war detention pursuant to the authority granted by Congress in the 2001 Authorization to Use Military Force (AUMF) as informed by the law of war. (The Bush Administration had also endeavored to ground this authority in the President's Article II Commander-in-Chief powers; the Obama administration has dropped that argument). The AUMF reads:

[T]he President is authorized 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 inter-national terrorism against the United States by such nations, organizations or persons.

In Hamdi, the Supreme Court identified the power to detain enemy combatants to be an incident of the waging of war and thus within the exercise of the "necessary and appropriate force" Congress authorized the President to use.
The definitions of the term "enemy combatant" subsequently promulgated by courts and the Department of Defense suggest two bases for detention: (1) an individual's membership in a designated hostile organization and (2) an individual's conduct supporting such organizations. The courts have struggled with what quantum and types of evidence are sufficient to prove the alternative prongs of this test. (The D.C. Circuit ruled in Al-Bihani v. Obama that evidence establishing either prong could provide a basis for detention under the AUMF). A set of recent D.C. Circuit opinions has shed further light on the membership element.


(left), a Yemeni, was captured at the Afghan-Pakistani border 12 miles from Tora Bora, the mountainous site of a major battle between the United States and combined Al Qaida and Taliban forces in December 2001. The government's theory for the lawfulness of Uthman's detention is premised on the allegation that he was "part of" al Qaida. Indeed, Uthman is among 48 detainees that the Obama administration has deemed to be too dangerous to release but "not feasible for prosecution." (The New York Times' dossier on Uthman is available here).

In ruling on Uthman's petition for a writ of habeas corpus, the district court found the following facts:
  • Uthman was captured in the vicinity of Tora Bora (right) while traveling with Al Qaeda members and bodyguards for Osama bin Laden;
  • He attended a religious school from which al Qaeda had recruited fighters where he met his traveling companions; traveled to Afghanistan using a route frequented by al Qaeda recruits; and was seen at (although did not stay at) an al Qaeda guesthouse; and
  • He lied about a Yemeni sheik who supported terrorism paying his travel expenses to Afghanistan.

The district court concluded that other facts alleged by the government (that Uthman had attended an al Qaeda training camp, fought against the Northern Alliance, or served as a bodyguard for Usama bin Laden) had not been proven by a preponderance of the evidence. (Some of this evidence apparently came from other Guantanamo detainees, one of whom had been declared psychotic and others of whom had been tortured while in detention). The district court ultimately granted Uthman's petition for a writ of habeas corpus on the ground that the government had not shown it was more probable than not that petitioner was "part of" al Qaeda. The court reasoned that there was insufficient evidence in the record that he was part of the organization's command structure or combat apparatus in that sense that he had received and executed orders. In so ruling, the court applied a test for membership developed by another district court judge in Gherebi v. Obama.
Interestingly, apparently two versions of the district court's Uthman opinion exist. According to ProPublica, the first opinion was released and then immediately withdrawn from the public docket, apparently because it was "accidentally cleared for public release before government agencies had blacked out all the classified information it cited." A new ruling appeared weeks later, minus key passages in which the district court sharply criticized the government's case. The second opinion does not mention its predecessor or that classified information had been removed. ProPublica's line-by-line analysis of the two opinions is available here.
On appeal, the D.C. Circuit reversed. Citing appellate precedent (e.g., Salahi v. Obama) that had emerged since the original district court's ruling, the Court noted that satisfying the command structure test offers a sufficient, but not necessary, indicia of membership. Rather, the D.C. Circuit mandates a "case-by-case basis" analysis that employs a "functional rather than a formal approach" that focuses "upon the actions of the individual in relation to the organization." Thus, other indicia beyond the receipt or execution of orders may prove that an individual is sufficiently involved with an organization to be deemed part of it. In the case at bar, the appeals court indicated that the fact that Uthman was keeping company with al Qaeda members was itself probative of al Qaeda membership especially in light of all the evidence taken as a whole pursuant to the "mosaic" evidentiary theory. The Circuit Court rejected what it described as Uthman's "Forrest Gump" account of why he ended up where he was as "coincidence upon coincidence upon coincidence."
In the absence of additional evidence of Uthman's intent or belligerent conduct, and by relying on Uthman's associations with al Qaeda members or institutions connected to al Qaeda, this opinion comes perilously close to assigning guilt by mere association.
For more on issues of law-of-war detention of enemy combatants, see here, here, here, here, here, here, here, here.


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