District Judge Robertson’s Slahi Guantanamo habeas decision exposes the defiant federal-power-centralizing agenda behind the Al Bihani habeas ruling of D.C. Circuit Judges Brown & Kavanaugh

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

In a clear and thoughtful decision issued March 22, 2010, that was declassified with redactions this Friday, April 9, Federal District Judge James Robertson granted the habeas corpus appeal of Guantanamo detainee Mohamedou Ould Slahi (referred to in the decision as Mohammedou Ould Salahi), a Mauritanian who has been imprisoned at Guantanamo Bay Naval Base since 2002.

But not just “imprisoned,” as Andy Worthington points out, helpfully filling in some of the censored and undetailed portions of the record, beside a rare photograph of Slahi:

Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.

After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.

As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”

After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”

However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.'”

In the process of ordering Slahi’s release from American military custody, D.C. District Judge Robertson exposed the twisted logic and misinformed reasoning of a key, but clearly erroneous as to the laws of war, political agenda-driven January 5, 2010 holding of the majority on a three-judge panel of the D.C. Circuit Court of Appeals, in the Al Bihani Guantanamo habeas corpus appeal. [That’s the appellate decision where a panel majority of Janice Rogers Brown and Brett M. Kavanaugh brazenly asserted that the presidential war powers authorized and invoked by Congress, via the 2001 Authorization for Use of Military Force, are not limited or governed by the international laws of war, and that went so far as to claim that “the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force.”]

Old Bailey photo by John Linwood, at flickr.com

Justice atop the Old Bailey in London

Judge Robertson deftly exposed the mendacity of the Al Bihani decision’s reasoning, even as he himself was forced to adher to that flawed higher court precedent. A flawed appellate court precedent that – unless and until overturned – now governs all habeas corpus appeals brought by Guantanamo prisoners, who may only be heard in the district court in Washington, D.C. that’s governed by the D.C. Circuit Court of Appeals – and thus by the specious reasoning of such unsound and unjust opinions as that of the Brown/Kavanaugh Al Bihani panel majority. Their decision to uphold as lawful the detention of Al Bihani (a citizen of Yemen, likewise detained since 2002 at Guantanamo Bay) was concurred in as to the result, but challenged as to its dismissive interpretation and understanding of the law of war, by Senior Circuit Judge Stephen F. Williams.

Robertson’s carefully-balanced decision, while acknowledging that Slahi himself admits to having been a sworn member of Al Qaeda in the early 1990s, found – more than six months after the first merits hearing on Slahi’s appeal, which itself took place years after Slahi first officially challenged the basis of his detention in federal court – that the Executive Branch failed to prove that it was simply more likely than not that Slahi is and was legally detained by the United States government, resulting in an order for the release of Slahi, which the Obama administration immediately moved to appeal in the D.C. Circuit.

Some of the important logic and reasoning of Robertson’s decision:

If the government has any authority to detain Salahi without charging him with a crime, its source is the Authorization for Use of Military Force, Pub. L. 107-04, 115 Stat. 224 (2001).

“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Authorization for Use of Military Force,
Pub. L. 107-04, 115 Stat. 224 (2001).


As the following discussion will make clear, Salahi may very well have been an al-Qaida sympathizer, and the evidence does show that he provided some support to al-Qaida, or to people he knew to be al-Qaida. Such support was sporadic, however, and, at the time of his capture, non-existent. In any event, what the standard approved in Al-Bihani actually covers is “those who purposefully and materially supported such forces in hostilities against U.S. Coalition partners.” 530 F.3d at 872 (emphasis added). The evidence in this record cannot possibly be stretched far enough to fit that test. [Footnote 4]

Footnote 4: The Al-Bihani panel extracted the test from the 2006 and 2009 Military Commission Acts, both of which made such “purposeful[] and material[] support” triable offenses. The panel concluded that “the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority.” 530 F.3d at 872. Where, as here, the government clearly has no triable criminal case of “purposeful and material support” against Salahi, the logic of that conclusion escapes me. [emphasis added]


The test now applied by most judges of this court for determining who is or was “part of” al-Qaida was first articulated by Judge Bates: “whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions.” Hamlily v. Obama, 616 F. Supp. 2d 63, 75 (D.D.C. 2009); see Awad v. Obama, 646 F. Supp. 2d 20, 23 (D.D.C. 2009) (appeal pending).


The question of when a detainee must have been a “part of” al-Qaida to be detainable is at the center of this case, because it is clear that Salahi was at one point a sworn al-Qaida member.


It is undisputed that Salahi swore bayat and was a member of al-Qaida in 1990, but the government had to show that he was still (or again) within its command structure when he was captured [arrested] on November [censored] 2001. Salahi’s admission that he once was part of al-Qaida but that he severed his ties after 1992 raises burden-of-proof questions: May the burden lawfully be shifted to Salahi to prove his dis-association? If so, at what point does the burden shift?


In Al-Bihani, however, the Court of Appeals clearly indicates that there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing “with more persuasive evidence,” 590 F.3d at 878, citing Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004). […]

If that is the rule, one might reasonably ask, how can Guantanamo detainees – locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them – how can such people [most of whom speak no English] possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events.

The Court of Appeals [panel] has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention – where national security interests are at their zenith and the rights of the alien petitioner at their nadir – is . . . permissible.” Id. [emphasis added]

The D.C. Circuit panel’s endorsement of that extreme imbalance of power, with its built-in government advantage as to claims about the alleged actions of the detainees pre-detention, essentially accepts and approves of the profoundly-unjust relationship between the Executive Branch and its foreign prisoners locked up in Cuba under American military (and, apparently, at-will-CIA) control, since Guantanamo was first purposely turned into an American military prison outside the law.

Those foreign prisoners of our military and CIA are human beings who our Judicial Branch of government – the intermittent legal niceties and reiterations of fundamental principles of law in the words of their long-awaited opinions aside (see Boumediene), in tandem with our Legislative Branch of government – has mostly tolerated, and mostly continues to tolerate being:

1. Imprisoned by our government for years without indictment, charge or trial thousands of miles from any active battlefield, intentionally out of easy reach of our independent Judicial Branch of government, the independent oversight of the Legislative Branch of government, and the media, in conditions that many Americans would be outraged to see animals subjected to.

2. Deprived of their liberty for years by our government without benefit of Prisoner of War status or protections, because denied an initial battlefield (or subsequent) Geneva Convention Article 5-compliant competent-tribunal adjudication of their assumed status – imposed essentially by default/decree – as unlawful, non-POW enemy combatant prisoners of the American president:

Congress was clearly aware of these treaty obligations under Article 5 when it debated and enacted the [2006] Military Commissions Act. […]

The CSRT [Combatant Status Review Tribunal] did not address [Hamdan’s default] entitlement to Prisoner of War status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities. […] As a consequence, this Commission cannot accept the 2004 CSRT determination that the accused is properly detained as an “enemy combatant” in satisfaction of the required determination regarding his entitlement to Prisoner of War Status.

– Military Judge, Captain, JAGC, US Navy, Keith Allred, 12/17/2007


The determination of whether an individual captured on the battlefield is a “lawful” or “unlawful” enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in war-related activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) — signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II — sought to carefully define “lawful combatant” for all signatory nations.


This critical determination of “lawful” or “unlawful” combatant status is far more than simply a matter of semantics. […] However, under the well recognized body of customary international law relating to armed conflict, and specific provisions of GPW III [Third Geneva Convention relative to POWs], lawful combatants enjoy “combatant immunity”5 for their pre-capture acts of warfare, including the targeting, wounding, or killing of other human beings, provided those actions were performed in the context of ongoing hostilities against lawful military targets, and were not in violation of the law of war.


Lawful enemy combatants enjoy all the privileges afforded soldiers under the law of war, including combatant immunity and the protections of the Geneva Conventions if wounded or sick, and while being held as prisoners of war (POWs).6 Additionally, lawful enemy combatants facing judicial proceedings for any of their actions in warfare that violate the law of war, or for post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States). See Arts. 84, 87 and 102, GPW III.

Indeed, GPW III codified many existing principles of customary international law and added numerous additional provisions, all aimed at protecting lawful combatants from being punished for their hostile actions prior to capture;7 ensuring that POWs were treated and cared for humanely upon capture; and seeking to guarantee the general welfare and well-being of POWs during the entire period they remained in captivity. See R.C. Hingorani, Prisoners of War 9 (1982).


Unlawful combatants, on the other hand, are not entitled to “combatant immunity” nor any of the protections generally afforded lawful combatants who become POWs. Unlawful combatants remain civilians and may properly be captured, detained by opposing military forces, and treated as criminals under the domestic law of the capturing nation for any and all unlawful combat actions. Lindh, 212 F. Supp. 2d at 554 (citing Ex parte Quirin, 317 U.S. at 30-31); see Army Op. Law Handbook 17. 9 (1982).


The burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim. Lindh, 212 F. Supp. 2d at 557-58. Once raised before a military commission, the burden then shifts to the prosecution to prove beyond a reasonable doubt that the defense does not exist. R.M.C. 916(b).


No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions.24 The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum, could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant.”


The declared purpose of the C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba — including Mr. Khadr — was solely to afford detainees “the opportunity to contest designation as an enemy combatant.” Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of “lawful” or “unlawful” enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process.25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an “enemy combatant” under the definition in the Wolfowitz memorandum26 to permit continued detention at Guantanamo Bay.

– Appellate Military Deputy Chief Judge Rolph of the
United States Court of Military Commission Review
9/24/2007, joined by Judges Francis and Holden
in the CMCR’s first-ever decision

3. Repeatedly coerced into testifying against themselves and others, by the application of secretly-exercised, publicly-uninvestigated, physically- and mentally-abusive treatment employed by members of the CIA, JSOC, for-profit private government contractors, and others, with the knowledge of the military chain of command that controls access to and all activity at the naval base.

4. Allowed, as uncharged, non-POW, abused, and powerless foreign prisoners, to continue to languish in our military prison camp for more months and more years while the Executive and Judicial Branches play leisurely legal tic-tac-toe with their liberty and their lives in habeas cases argued far away from their presence. Thereby implicitly endorsing the indefinite detention of these foreign prisoners as ‘no big deal’ and thus not a situation that requires the slightest significant rearrangement of judicial time or resources to force these hearings to a prompt conclusion, as the highest judicial priority.

All that, even as yet another independent federal judge reveals, as plainly as can be, while Congress continues studiously looking the other with a collective yawn, that we had (and still have, in certain key respects) a lawless military prison system at Guantanamo, which “extensive[ly] and severe[ly] mistreated” another prisoner:

There is ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantanamo from mid-June 2003 to September 2003, Tr. Exh. C, D, I, P, BB -HH, JJ, LL, 00, PP, QQ, RR, SS, BBB; AFR Exh. 93; Hr. Tr. 411-436.

Which is, among other things, a completely-predictable result of a rules-bound process trying to effectively or timely contend with lawless actions taken by men and women without integrity in high public office who acted with impunity, allegedly in the name of our “safety,” and in disregard of law and human rights, “because they could” – and who have thus far escaped any negative personal consequences for their actions, while leaving it to the rest of us to endure and remedy (or not) the destructive aftermath of their unconscionable abuse of power.

The government had to adduce evidencewhich is different from intelligence – showing that it was more likely than not that Salahi was “part of” al-Qaida. To do so, it had to show that the support Salahi undoubtedly did provide from time to time was provided within al-Qaida’s command structure. The government has not done so.


The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. […] But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future – any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place.
Federal District Judge James Robertson,
3/22/2010 (publicly released 4/9/2010)

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