Senior Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit was on a panel Tuesday that unanimously rejected a Guantánamo Bay detainee's petition for release from custody. But that doesn't mean the judge liked it.

Edwards, writing separately but agreeing with the outcome, said the detainee should be freed—"but his claim is doomed to fail because of the vagaries of the law." The prisoner, Abdul Al Qader Ahmed Hussain, was a teenager was he was taken into custody in Afghanistan and transferred to Guantánamo. He has been confined there for eleven years.

"I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court," wrote Edwards, a former D.C. Circuit chief judge who was appointed to the appeals court in 1980. "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases."

Edwards criticized his colleagues—judges Thomas Griffith and Karen LeCraft Henderson—for invoking what he called the "walks like a duck" test in finding that the evidence sufficiently supported the U.S. Department of Justice's contention that Hussain was loyal to enemy forces.

Hussain, Edwards wrote, citing an example of his beef with the evidence in the case, said he was given a weapon for his own self-protection. The judge said the government failed to show that Hussain ever used the weapon for any purpose or that he had the gun with him when seized near Kabul, Afghanistan.

"This is not a proper application of the preponderance of the evidence test with respect to the matter in dispute," Edwards wrote. "And it is quite invidious because, arguably, any young, Muslim man traveling or temporarily residing in areas in which terrorists are known to operate would pass the 'duck test.' "

Griffith, who wrote the D.C. Circuit opinion, said Hussain "was more likely than not a part of enemy forces at the time of his capture." There's no categorical rule, Griffith wrote, to determine whether a person was a "part of" an enemy group such as al-Queda or the Taliban.

Griffith said in a footnote that Edwards’ characterization of "mere possession of the weapon" misses what he called "the critical point." Taliban soldiers, Griffith said, provided the gun to Hussain, and under D.C. Circuit precedent, "that alone demonstrates loyalty to a shared cause."

"The innocent wayfaring teenager our colleague invokes bears no resemblance to Hussain, who was not simply in the wrong place at the wrong time," Griffith said. "He was in the wrong place, at the wrong time, with the wrong people, doing the wrong things."

Edwards noted he had no authority to “stray away from precedent" and that he was "disquieted by our jurisprudence." However, he was constrained to go along with his colleagues in upholding the trial judge's ruling to keep Hussain detained, he said.

"We are of course disappointed by the decision, but we very much appreciated Judge Edwards’ concurrence, which really hits the nail on the head in terms of the fundamental problem with the circuit’s approach to the burden of proof," a lawyer for Hussain, Wesley Powell, a litigation partner in the New York office of Wilkie Farr & Gallagher, wrote in an e-mail.

The government, Powell said, "faces what is really a minimal 'some evidence' standard, which, if it is met (and it always is), the burden shifts to the detainee to persuade the trial court that he was not “part of” an enemy force."

"This will always result in a loss for the detainee, even on the thin record before the court here," Powell said. "Our client has been at Guantanamo since he was 17 and it is high time that he be returned home to Yemen."

Mike Scarcella can be contacted at mscarcella@alm.com.