November 12, 2010
D.C. Circuit Clarifies "Part Of" Test for Guantanamo Detention
The D.C. Circuit last week remanded a Guantanamo petitioner's habeas corpus case to the district court for a determination whether the petitioner was "part of" al Qaeda under the Circuit's refined standard for detention.
The case, Salahi v. Obama, tests the government's authority to detain Mohammedou Ould Salahi as "part of" al Qaeda based on his 1991 oath of allegiance to the organization, his association with its members, and his support for the organization. (The government has not criminally indicted Salahi for providing material support to al Qaeda, and it does not seek to detain him on the ground that he aided the 9/11 attacks or the ground that he supported al Qaeda in hostilities against the U.S. or its partners.) The district court granted the writ and ordered Salahi released.
The D.C. Circuit ruled that the district court applied the "part of" test without the benefit of the D.C. Circuit's more recent rulings in Al-Adahi v. Obama, Bensayah v. Obama, and Awad v. Obama. The D.C. Circuit ruled that those cases require a more flexible, case-by-case evaluation of a "part of" claim that looks at the evidence against a detainee in its totality. The D.C. Circuit thus rejected the district court's formalist approach that looks at evidence piece-by-piece, and only in isolation.
Here the D.C. Circuit ruled that the district court erred in finding that Salahi was not part of the command structure of al Qaeda, because there was no evidence that he received and executed orders from al Qaeda. The D.C. Circuit ruled that the "command structure" test was relevant to the "part of" test, but alone not dispositive of it. In short, the district court "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaeda when captured."
The circuit court also ruled that the government did not shift the burden to Salahi to prove that he was not "part of" al Qaeda at the time of capture merely by showing that he swore an oath in 1991. The court pointed out that at the time of Salahi's oath, al Qaeda and the United States shared a common objective: to topple Afghanistan's Communist government. Bin Laden didn't directly turn on the United States until 1992, when he issued his first fatwa against U.S. forces. But Salahi declared that he severed ties to al Qaeda that same year. Moreover, over 10 years passed between Salahi's oath and his capture. The court ruled that Salahi's oath was relevant to determining whether he was "part of" al Qaeda, but under the circumstances it couldn't shift the burden to Salahi. (The court ruled that an oath might shift the burden under different circumstances, e.g., if the oath occurred closer to the time of capture.)
The court gave a sense of the kinds of questions it'd like answered under the broader "part of" approach:
[D]oes the government's evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization? Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their "discussion of jihad and Afghanistan"? Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition? May the court infer from Salahi's numerous ties to known al-Qaida operatives that he remained a trusted member of the organization?
Op. at 14.
These questions instruct the government and lower court to press harder in putting the evidence together and drawing inferences that Salahi was "part of" al Qaeda. The ruling thus not only reaffirms the broader approach to the "part of" test in its most recent cases; it also puts that approach into sharper focus. Particularly, Salahi illustrates that this case-by-case, totality-of-circumstances approach can make the government's job much easier: The government can (and the courts must) put the disparate pieces of evidence together and draw inferences to create a larger picture of a detainee who was "part of" al Qaeda at the time of capture.
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