A federal appeals court has reversed a federal district court's grant of a habeas petition to a Guantanamo detainee in a ruling that relaxed the evidence standards for the government to hold men at the U.S. Navy base. It is the first time the appeals court has overturned a district court's ruling that a Guantanamo detainee should be freed.
The detainee, Mohammed Al-Adahi, is represented by a team of lawyers at Sutherland and King & Spalding.
Al-Adahi, who is from Yemen, has been imprisoned at Guantanamo for eight-and-a-half years.
The government alleged that Al-Adahi was an instructor in an al-Qaida training camp, a bodyguard for Osama bin Laden and fought for al-Qaida against the U.S.
U.S. District Court Judge Gladys Kessler ruled Aug. 17, 2009, that the government produced "no reliable evidence" that Al-Adahi was a member of or provided support for al-Qaida.
But U.S. Senior Circuit Judge A. Raymond Randolph, writing for a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, said in his July 13 opinion that Kessler's consideration of each piece of evidence on its own merits, instead of as part of a whole, was a "fundamental mistake that infected the court's entire analysis."
John A. Chandler, a King & Spalding lawyer representing Al-Adahi, said his team would either ask for an en banc rehearing or petition the U.S. Supreme Court to hear the case. "We are very disappointed and still expect that we will prevail," Chandler said.
He criticized the appeals court for reassessing the evidence being used to hold Al-Adahi instead of assessing the trial court's ruling for errors of law. "The appellate court pretty clearly wanted to find he was al-Qaida and substituted their judgment on the facts for the judgment of the trial court, when the trial court is supposed to make decisions of fact," he said.
With this decision, federal courts have ruled that 15 men at Guantanamo are being lawfully detained. They have granted the habeas petitions and ordered the release of 36 others, according to Department of Justice spokesman Dean Boyd. "We're pleased the circuit court reached the conclusion it did," said Boyd.
According to the declassified trial court opinion, the government's evidence against Al-Adahi came from hearsay statements from other inmates at Guantanamo to interrogators and his own testimony about his activities in Afghanistan prior to Sept. 11. Kessler wrote that there were no deposition transcripts and no witnesses to examine, other than Al-Adahi.
In earlier military tribunals held at Guantanamo, the government kept most of the evidence used to hold Al-Adahi secret, saying it was classified.
Al-Adahi was arrested by Pakistani authorities after the U.S. bombing of Afghanistan in the wake of Sept. 11, 2001, and they turned him over to the U.S. military for a bounty.
In his testimony, Al-Adahi said he'd met bin Laden on two occasions, spent a night at a Taliban guesthouse during his travels in Afghanistan and spent about a week in an al-Qaida training camp, but was kicked out because he didn't follow the rules.
He acknowledged that his brother-in-law in Afghanistan was a bin Laden supporter. He also said that he did not support al-Qaida or war against the U.S.
The government testified that other detainees identified Al-Adahi as a bin Laden bodyguard, an instructor at the al-Qaida training camp, Al Farouq, and a fighter for the group.
Kessler's ruling said the government's central accusation against Al-Adahi -- that he attended the training camp in August 2001 for about a week -- is based on his testimony and not in dispute. What significance to give his weeklong attendance is the critical issue, she wrote.
Randolph and Kessler give different weight to Al-Adahi's testimony that he was expelled from the training camp because of his refusal to follow orders and that he was not a member of the group.
Randolph accepts the government's argument that Al-Adahi's departure unscathed from the al-Qaida training camp demonstrates that he is an al-Qaida member, since others who have left al-Qaida training camps were beaten on suspicion of being spies. The government argued that Al-Adahi's departure from the camp was part of a cover story to hide that he was an al-Qaida operative.
Kessler, on the other hand, concluded that his departure with impunity from the al-Qaida training camp showed at most that he was protected by his brother-in-law, per his testimony.
"It most certainly is not affirmative evidence that Al-Adahi embraced al-Qaida, accepted its philosophy and endorsed its terrorist activities," she wrote, adding that the government supplied no evidence showing further contact with al-Qaida after his departure from the training camp.
Randolph said Kessler failed to consider "conditional probability analysis" in weighing the government's evidence, which he explains as a theory that the occurrence of one event makes another event either more or less likely.
He cites a math professor, John Paulos, to explain the theory, referencing Paulos' books "Innumeracy: Mathematical Illiteracy and Its Consequences" and "Beyond Numeracy: Ruminations of a Numbers Man."
The trial court "erred in its treatment of the evidence" and "reached [its] conclusion through a series of legal errors," Randolph wrote.
"When the evidence is properly considered, it becomes clear that Al-Adahi was -- at the very least -- more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard," Randolph wrote.
That reversed Kessler's ruling that the government did not meet the preponderance of evidence standard necessary to hold al-Adahi. Randolph wrote in his ruling that he doubts the Constitution's Suspension Clause "requires the use of the preponderance standard," but added the appellate court would not decide the question in this case, since neither side raised it.
Randolph wrote the rulings against Guantanamo detainees in several key cases that were later overturned by the U.S. Supreme Court, including Rasul v. Bush and Boumediene v. Bush.
Chandler's team is representing six men being held at Guantanamo, all from Yemen. Of the six, three were cleared by the government for release in 2008 and 2009, but are still being held at the naval base, Chandler said.
The DOJ spokesman said 180 men remain imprisoned at the base.
