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Caution urged in detainee cases

The D.C. Circuit Court, stressing anew the duty of federal judges to use caution before ordering the release of any Guantanamo Bay detainee, on Friday ordered a new review of the case of a Mauritania native to see if he kept his links to a terrorist group after swearing that he had severed all ties to it.  The three-judge panel also reminded trial judges again that they must not take too narrow a view of what it took to be considered an al-Qaeda operative.

In a 16-page opinion, the Court overturned a judge’s ruling that Mohammedou Ould Salahi had to be released because the Justice Department had not proved that he was a part of al-Qaeda at the time of his capture in his home country in November 2001, about two months after President George W. Bush had begun a “war on terror” after the Sept. 11 terrorist attacks.   Salahi took an oath of loyalty to al-Qaeda in March 1991, but he has testified that he severed any link to that organization in March 1992 — after he had left Afghanistan, and well before the terrorist attacks on the U.S.

Senior U.S. District Judge James Robertson (who has since retired) had concluded that, although Salahi had a series of links to al-Qaeda figures and was “an al-Qaeda sympathizer,” he was not a part of the “command structure” of the organization at the time he was taken prisoner and sent to Guantanamo Bay.  As it had in prior rulings, however, the Circuit Court said Friday that that is not the only test that is to be used in determining whether a detainee should continue to be held prisoner.

At one time, the government had accused Salahi of recruiting into al-Qaeda one of the planners of the Sept. 11 attacks — Ramzi bin Al-Shibh, and two of the pilots who flew planes that carried out the attacks — Marwan al-Shehhi and Ziad Jarrah.  However, it did not rely upon those claims in urging Salahi’s continued detention.  Rather, it focused on activities that, it argued, showed that he was “part of” the terrorist organization in the fall of 2001.

In appealing Judge Robertson’s order that Salahi be released, the government urged the Circuit Court to simply overturn that ruling as wrong, and to deny the prisoner’s habeas plea.   The three-judge panel, however, said that while it was overturning the release order, “the better course” now would be to send the case back to District Court to get answers to a series of questions about Salahi’s activities.  Judge Robertson, the opinion noted, had not had the benefit of three later Circuit Court rulings clarifying judges’ duty in reviewing Guantanamo habeas cases.

Among the issues that a new judge — taking over because Robertson has retired — must explore are whether Salahi understood that he was referring recruits to work in al-Qaeda’s “jihad” against the U.S., what Salahi may have said to bin al-Shibh in a discussion of jihad in Afghanistan, whether he had been asked by al-Qaeda to help with communications projects in Afghanistan and elsewhere, whether he had taken a role in planning computer “cyberattacks,” and whether he remained “a trusted member” of al-Qaeda up to the time of his capture.

“With answers to questions like these, which may require additional testimony,” the Circuit Court said, “the District Court will be able to determine in the first instance whether Salahi was or was not sufficiently involved with al-Qaeda to be deemed part of it.”

The panel, in “a final note,” said it wanted to repeat an earlier admonition to the habeas judges that they must review all of the evidence collectively, and not base their decisions for or against release by picking and choosing specific items of evidence in isolation.  That part of the new ruling put new stress on a concept that the Circuit Court first embraced last July in a detainee case and that is now under challenge in a pending Guantanamo case in the Supreme Court — Al-Adahi v. Obama (10-487).  In the Al-Adahi ruling, the Court said that it would require judges in these cases to use a mathematical concept — “conditional probability” — in weighing the evidence so that they see how all of the evidence may fit together.

If judges examine the government’s reasons for holding a detainee only one piece at a time, tossing aside one piece and then another, they are prone to make a mistake, the Circuit Court said in that decision, because they do not see that one fact can make a subsequent fact more compelling.  The mistake, it went on, comes when a judge finds one piece of evidence wanting, but fails to see that, together with others, it may help support the conclusion that detention is justified after all.

Circuit Judge David S. Tatel wrote the opinion for the panel, joined by Chief Judge David B. Sentelle and Circuit Judge Janice Rogers Brown.

It did not appear that the Circuit Court had added any new interpretations, in this decision, of the President’s authority to order the detention of those suspected of terrorism against the U.S.

Recommended Citation: Lyle Denniston, Caution urged in detainee cases, SCOTUSblog (Nov. 5, 2010, 11:36 AM),