Thursday, June 20, 2013
The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay. The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases. But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.
If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied. The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Indeed.
The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture. (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.") The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.
But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied. Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard. Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.
Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.
Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Conc. at 5.