This one revolves around a decision yesterday by a DC Appeals Court for Yasein Khasem Mohammad Esmail, detainee, Camp Delta. As I am not well versed in reading a typical court decision, it is not my normal reading material. Went and looked over this one though since it was referred to in a rather unhappy post on The Guantánamo Blog. If you have never seen it, this is a very good read.
In looking over this opinion, I am struck by how arbitrary it all seems to be. In a country where such notions as innocent until proven guilty, chain of evidence and differentiating between hearsay and verifiable evidence it is a little shocking to read. In reading it over I hear the courts saying something like "we really don't give a shit that we tortured you, tried you on uncorroboratable hearsay, we think that there is a strong enough chance that you could have been part of al Qadea and that lets us violate all legal precedent and tradition."
I can not make this up, from the source:
Opinion for the Court filed PER CURIAM. Concurring opinion filed by Senior Circuit Judge SILBERMAN.
PER CURIAM: Appellant, Yasein Khasem Mohammad Esmail, a detainee at the U.S. naval base in Guantanamo Bay, Cuba, was captured by Northern Alliance forces in December 2001 and transferred to American custody in January of the following year. In 2004, he filed a petition for a writ of habeas corpus with the United States District Court for the District of Columbia. The district court denied the petition, and Esmail now appeals. 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.
Esmail challenges the district court’s decision on a number of grounds. In particular, he argues that the district court erred in finding that statements he made to American interrogators in Afghanistan and at Guantanamo Bay were voluntary. He also argues that the district court erred in relying on those statements despite the government’s failure to provide sufficient evidence corroborating their content. But we have no need to consider either of those issues because the record contains sufficient facts—affected neither by the alleged coercion nor by the lack of corroboration—to support the district court’s conclusion that Esmail was “part of” al Qaeda at the time of his capture. See Bensayah v. Obama, 610 F.3d 718, 724–25 (D.C. Cir. 2010) (“[T]he [Authorization for Use of Military Force] authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda.”); see also Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010) (clarifying that in habeas appeals involving Guantanamo Bay detainees we review district court fact findings for clear error, and we review the ultimate issue of whether the detainee was “part of” al Qaeda de novo).
Was more likely than not "part of" al Qadea. Perhaps I am a bit old fashioned, but that seems a little less like a burden of proof than I would like to have applied to me.
Think about what is going on here. What sucks even more is the opinion statement in the last two pages. It is here in part:
My second point, not unrelated to the first, goes to the unusual incentives and disincentives that bear on judges on the D.C. Circuit courts – particularly the Court of Appeals – charged with deciding these detainee habeas cases. In the typical criminal case, a good judge will vote to overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime. That can mean that a thoroughly bad person is released onto our streets, but I need not explain why our criminal justice system treats that risk as one we all believe, or should believe, is justified.
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, 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, 613 F.3d 1102 (D.C. Cir. 2010), 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. Id. at 1104-05. 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 v. Bush, 553 U.S. 723 (2008)). But I, like my colleagues, certainly would release a petitioner against whom the government could not muster even “some evidence.”
So the (sic) Justice Department just has to come up with some evidence to detain a person - be that hearsay, or that derived by torture - to hold someone because that person was "more likely than not part of al Qadea". And this determination is left up to a judge based on a burden that they think it is "somewhat likely" that they are even a supporter of al Qaeda? What the fuck?
I have another post about madness at the OLC (Office of Legal Counsel) - which you may know from it's fine tradition of telling the executive branch (often post-facto) that silly things like laws and constitutionality no longer apply to them which then just seems to magically become law. WTF?!?!
More later. The last sentence in the decision says it all: