Saturday, June 11, 2011
A three-judge panel of the D.C. Circuit on Friday unanimously reversed the district court's decision granting Guantanamo detainee Hussain Salem Mohammad Almerfedi's petition for a writ of habeas corpus.
The case, Almerfedi v. Obama, is a relatively close case for the D.C. Circuit. It turned on three pieces of evidence: (1) Almerfedi's acknowledgment that he stayed for two-and-a-half months at Jama'at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity "closely aligned" with al Qaeda (although he refused to join the organization and barely talked to anyone there); (2) Almerfedi's circuitous route to his stated destination, Europe, which took him closer to the Afghan border; and (3) his unexplained possession of $2,000.00 in cash when he was captured. The three together, wrote the court, demonstrated by a preponderance of the evidence that Almerfedi was "part of" al Qaeda.
But still the panel emphasized the minimal preponderance-of-the-evidence standard when evaluating the government's case--and suggested that this was the first time it had evaluated a case so close.
The panel split on one issue (even as they agreed on the evidence above and on the outcome): whether to credit the statements of another detainee, al-Jadani, that Almerfedi stayed at a guesthouse in Tehran maintained by al Qaeda in 2002 or 2003. (The district court found that al-Jadani's statements were not credible.) Judges Silberman and Kavanaugh credited al-Jadani's statements; Judge Rogers did not. Judge Rogers wrote that "[t]he record evidence does not lead to a 'firm conviction' that the district court's analysis of al-Jadani's statements was mistaken, much less implausible."