Friday, April 8, 2011
A three-judge panel of the D.C. Circuit today upheld the District Court's denial of Guantanamo detainee Yasein Khasem Mohammad Esmail's habeas corpus petition. The panel, in a per curiam opinion, wrote, "Because we agree with the district court's ultimate determination that Esmail was more likely than not 'part of' al Qaeda at the time of his capture in December of 2001, we affirm."
The decision is unremarkable--it applies the "part of" and preponderance tests, and deals unsurprisingly with the evidence--with one notable exception: Judge Silberman's concurrence.
Judge Silberman took issue with everything from the standard in habeas cases, to the dangers that released detainees pose, to the challenges that lower courts face in implementing Boumediene v. Bush, and even to the "charade" when the administration declines to release winning petitioners. It's worth a read:
[T]he government at oral argument agreed that even if petitioner could show he resolutely declined to "join" al Qaeda or the Taliban, and thus could not be said to be a part of either, so long as evidence showed he fought alongside of al Qaeda, the Taliban, or with associated forces he would be covered by the Authorization for Use of Military Force. District courts, in that sort of case, need not strain to find a petitioner is "a part of al Qaeda." . . .
When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country [than when our criminal justice system releases likely criminals when a conviction is based on insufficient evidence], and its people, of an order releasing a detainee who is likely to return to terrorism. One does not have to be a "Posnerian"--a believer that virtually all law and regulation should be judged in accordance with a cost/benefit analysis--to recognize this uncomfortable fact.
That means that there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama, which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary--and moreover, unrealistic. I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter. Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do--taking a case might obligate it to assume direct responsibility for the consequences of Boumediene). . . .
Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, see Kiyemba v. Obama, then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court's defiant--if only theoretical--assertion of judicial supremacy, see Boumediene, sustained by posturing on the part of the Justice Department and providing litigation exercise for the detainee bar.