The D.C. Circuit Court, in a broad hint to the Justice Department to adopt a new strategy in detainee cases,  suggested strongly on Tuesday that federal judges are now demanding too much evidence from the government to justify holding prisoners at Guantanamo Bay, and elsewhere.  Although the three-judge panel said it was not deciding the issue finally, it said that detention might be legal if the government has only “some evidence” to support captivity.  Even a “preponderance of the evidence” standard may be too strict, it indicated.

The ruling — the latest in a lengthening string of Circuit Court defeats for detainees at Guantanamo — came in the case of Al-Adahi v. Obama (docket 09-5333).  It overturned a decision last August by District Judge Gladys Kessler, that a Yemeni national, Mohammed Al-Adahi, was entitled to be released.  Tuesday’s ruling was the second within a week by the Circuit Court reversing Judge Kessler in a detainee case, and the new opinion brought a scathing critique of the methods she used to decide in Al-Adahi’s favor.   The opinion even lectured Kessler on how to do probability analysis. As has often happened in Guantanamo cases decided against detainees in the D.C. Circuit, the new ruling was written by Senior Circuit Judge A. Raymond Randolph.

In the wake of the Supreme Court’s 2008 decision in Boumediene v. Bush, giving Guantanamo detainees a constitutional right to challenge their confinement but without spelling out how District Courts were to judge such cases, the District judges in Washington, D.C., have been using the most generous level of proof in civil cases — “preponderance of the evidence” — to test the government’s reasons for holding specific detainees. That is a standard worked out in November 2008 by the coordinating judge in Guantanamo cases, Senior District Judge Thomas F. Hogan.

Using that standard, the District Courts have issued release orders for 38 of the 52 detainees whose cases have reached a conclusion.  With one exception, and that was only a partial exception, the Circuit Court has rejected detainee challenges pursued on appeal.   Tuesday’s ruling was the first by the Circuit Court, since Boumediene, to directly overturn a District Court order granting a detainee a release order.

Tuesday’s ruling appeared to have gone the furthest of any Circuit panel ruling to narrow the chances that other detainees can prevail in cases still to be decided in the District Courts.  In virtually all of the habeas cases, the government has been able to produce “some evidence” that a detainee has links to terrorist organizations or figures.  If that were now the level of proof required, the government would appear much more likely to prevail.

After the Circuit panel had held a hearing in the Al-Adahi case on Feb. 15, it ordered the government and Al-Adahi’s lawyers to file new briefs suggesting what factual proof — “if any” — the government needed to support continued detention.   Clearly disappointed with the responses it got, the panel opinion said they “were not exactly illuminating.”

The government brief said that, in the Guantanamo cases as they were presently unfolding, the “preponderance” standard endorsed by Judge Hogan (and followed by all other judges) was “appropriate.”  But it added that “a different and more deferential standard” might be proper in other situations (but did not explain that further, according to the Court).  Al-Adahi’s lawyers accepted the “preponderance” standard.

But, the Court said, it was “left with no adversary presentation on an important question affecting many pending cases in this court and in the district court. “  It went on to say that “we doubt” that the Constitution “requires the use of the preponderance standard.”   It commented that the District judges had not said why they were using that approach, but that Judge Hogan had indicated it was based on the Supreme Court’s Boumediene decision.

“But,” Judge Randolph wrote, “Boumediene held only that the ‘extent of the showing required of the Government in these cases is a matter to be determined,’ ” while adding that the analysis should equal the scope of habeas rights as they existed in 1789, when the Constitution was written.   The Circuit panel, however, said it was “aware of no precedent in which 18th Century English courts adopted a preponderance standard.”

Turning to deportation cases, the panel said, it has been enough that the government produced “some evidence” but that there was no question of the facts as asserted by the government.  It said the same level of proof was found sufficient in cases challenging military draft decisions.   Some other precedents, it added, have said “probable cause” was an adequate standard.

Still, the panel assumed, for the sake of argument in Al-Adahi’s case, that the “preponderance standard” did apply.   Using that approach, it was apparent that the Circuit Court easily found that Al-Adahi had close enough links to the Al-Qaeda terrorist network, and to its leader, Osama bin Laden, to justify his detention.

Before getting into the specifics of his travel to Afghanistan from his home in Yemen, and what he did while in Afghanistan, the panel critiqued with strong language Judge Kessler’s “error” that it said “affects much of the district court’s evaluation of the evidence. The error stems from the court’s failure to appreciate conditional probability.”  It then cited to an opinion Judge Randolph had written in 1993 (U.S. v. Prandy-Binett) discussing a 1988 book: “Innumeracy: Mathematical Illiteracy and its Consequences,” by John Allen Paulos.

Paulos was quoted there as saying that “Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability.”   That, the panel said, was Judge Kessler’s mistake.  It said: “Those who do not take into account conditional probability are prone to making mistakes in judging evidence.  They may think that if a particular fact does not itself prove the ultimate proposition…, the fact may be tossed aside and the next fact may be evaluated as if the first did not exist…This is precisely how the district court proceeded in this case.”

It then ticked off specifics of how it deemed Judge Kessler to have treated government assertions that Al-Adahi had spent time with bin Laden, the circumstances of his stay in Al-Qaeda guesthouses and of his undergoing military training at a Al-Qaeda camp, “and so on.”  The panel added: “The government is right: the district court wrongly ‘required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in this case.  This was a fundamental mistake that infected the court’s entire analysis” (quoting from the government brief).

The panel summed up: “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.”

It thus appears that, even if the Justice Department did not now take the Circuit Court’s hint to propose a “some evidence” standard for use in the remaining Guantanamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.  In some earlier detainee cases, before the Supreme Court’s series of rulings, the Bush Administration did take the view that “some evidence” should be sufficient to justify detentions by the military during a time of armed conflict.

Posted in Detainee Litigation