Detainee defeats continue
on Jun 8, 2010 at 10:14 am
The string of D.C. Circuit Court rulings interpreting the Supreme Court’s decision allowing Guantanamo Bay detainees to challenge their confinement lengthened on Tuesday, as a three-judge Circuit panel upheld the government’s authority to continue the imprisonment of a Yemeni national.   Once more, as in several other recent rulings, the Circuit Court provided a new victory for the Obama Administration, and a new defeat for a detainee.
The ruling came in the case of Adham Mohammed Ali Awad. A federal judge, while saying that the evidence of Awad’s role in armed conflict was “gossamer thin,” had rejected his plea for freedom, and the Circuit Court upheld that result. The ruling actually had been made on June 2, but the Circuit Court only released its opinion Tuesday in a redacted form, after the editing out of information the government considers to be secret. The deletions were marked with heavy blocks of black. In a separate order, the Circuit Court noted that the government had accepted the deletions.
In rejecting Awad’s plea for release through a habeas writ, the Circuit Court panel indicated it was not providing any new legal interpretation, saying that prior Circuit Court rulings had resolved those issues. Its ruling thus was based primarily upon facts as they were found by District Judge James Robertson. The opinion noted: “Awaad admits that the reason he traveled to Afghanistan was to join the fight against U.S. and allied forces. He then succeeded in that goal by joining a group of al Qaeda fighters who took over part of a hospital and barricaded themselves therein.”
Although the Court did not appear to lay down any new legal declarations, two parts of the opinion, written by Circuit Judge David B. Sentelle without dissent, appeared to have some impact as other detainee cases reach the Circuit Court.
Perhaps the most significant of these new statements made clear, for the first time, that the Circuit Court would not require the government to defend further detention by showing that a captive was part of the “command structure” of the Al Qaeda terrorist network. The government, the Circuit Court said, need only prove that a prisoner it seeks to hold was “part of” Al Qaeda, and this can be satisfied in a numbere of ways short of evidence that the individual had a “command” role.
The other legal comment of potentioal significance was that the panel made a special effort to make clear that the government’s burden of proof to justify holding a detainee at Guantanamo was the lowest level — a preponderance of the evidence. The Circuit Court had uheld that standard in its earlier decision in Al-Bihani v. Obama (Circuit docket 09-5051), but Awad’s lawyers sought to raise doubts about it in his case.
The Circuit Court responded this way: “Awad seems to argue thatthere is some uncertainty in the evidentiary standard. Lest there be any further misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in consideraing a habeas petition from a detainee held pursuant to the AUMF [that is, the 2001 Authorization for Use of Military Force].”
The Al-Bihani ruling represents the Circuit Court’s most significant ruling so far to interpret how District judges are to handle Guantanamo detainees’ cases.  The Circuit Court now is weighing a request to reconsider that ruling by the full, en banc Circuit Court. The briefing has been completed on that issue so a ruling on it could come at any time.
