After Uthman: Looking Forward by Looking Back

As Ben mentioned yesterday, the D.C. Circuit’s new Uthman decision signaled a notable clarification in how lower courts should consider evidence in habeas cases: When considering whether a detainee is "part of" Al Qaeda or the Taliban, Judge Kavanaugh wrote, the test courts should apply is a functional one. The court then reversed Judge Kennedy's early 2010 decision, a decision that predated the precedents from which the functional test is derived. But although the functional test itself is not new, its application to the facts of Uthman, of course, was. And, after taking a moment to imagine how some of the early Guantanamo cases might have turned out if the district court had had the benefit of this most recent effort to clarify just what the functional test entails, I was startled by just how much those early cases would be affected were they to come before a court today. One case in particular stands out. In July of 2009, long before any of the D.C. Circuit’s merits decisions, Judge Colleen Kollar-Kotelly presided over the case of a Guantanamo detainee named Khalid Abdullah Mishal Al Mutairi. Al Mutairi claimed that he had gone to Afghanistan to build a mosque in a small Afghan village, Namruz. The mosque ended up costing less than expected, and he donated the extra funds to several charitable causes recommended to him by representatives of the al Wafa organization (which he believed to be a charity), including building a school and buying clothing for refugees. He then claimed that to return to his home in Kuwait he had needed to pay a guide to take him across the border into Pakistan, where he was captured, because his passport had been stolen. Judge Kollar-Kotelly analyzed this explanation against evidence the government had submitted, including its evidence that al Wafa was not a charity but an Al Qaeda-associated force. In her written opinion, she first recognized that the standard of detention remained "unsettled." She then analyzed the evidence and decided to grant Al Mutairi's petition. She wrote:

Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi's conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi's described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi's version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence.

But consider the facts that Judge Kollar-Kotelly found, as she described them in the opinion (though they did not appear in this order):

• "Al Mutairi's travel from Kabul to a village near Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border."
• "Al Mutairi's path of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals into Afghanistan to engage in jihad." She also found that "the path and timing of Al Mutairi's travels . . . is consistent with someone who may have joined either of those two organizations."
• "Al Mutairi's non-possession of his passport is consistent with an individual who has undergone al Qaida's standard operating procedures that require trainees to surrender their passports prior to beginning their training." She also acknowledged "the appearance of Al Mutairi's name and reference to the passport," was "minimally probative" in some regard, though the redactions make it difficult to discern exactly how or why.
• "Al Mutairi has given inconsistent statements regarding when he gave [REDACTION] the $9,000 for the construction of the mosque. Although he stated that he gave the $9,000 to [REDACTION] in Namruz in a January 7, 2007 interrogation, [REDACTION] When asked by an interrogator why he would wait until Kabul to give [REDACTION] the money for the mosque to be built in Namruz, Al Mutairi could not answer the question."
• "Based on these identified inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit Al Mutairi's version of events that occurred while he was in Afghanistan."

Compare these findings with the facts that the Uthman court distilled from the district court’s findings and certain uncontested submissions (again not in this order):

• Uthman was captured in December 2001 in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies.
• Uthman traveled to Afghanistan along a route used by al Qaeda recruits.
• While in Afghanistan, Uthman was seen at an al Qaeda guesthouse.
• Uthman lied to hide the fact that someone else paid for his travel to Afghanistan.
• Uthman’s explanation of why he went to Afghanistan and why he was traveling in a small group that included al Qaeda members and a Taliban fighter near Tora Bora during the battle there involves a host of unlikely coincidences.

In key areas of factual inquiry in both petitioners' cases—including their location of capture, their patterns of travel, other characteristics of their behavior shown to be consistent with the those of known Al Qaeda members, their questionable explanations for the transport and transfer of sizable amounts of money, and their overall credibility—Al Mutairi’s case looks in retrospect a lot like Uthman’s. But the D.C. Circuit's interpretation of these facts, which drew heavily from key developments in Awad, Bensayah, Al Odah, and Al Adahi, was very different from Judge Kollar-Kotelly's. In particular, Uthman hones in on how a court should interpret a constellation of incriminating, but circumstantial, facts that were individually somewhat less incriminating than those the court had previously faced. As Judge Kavanaugh put it in yesterday's opinion:

Uthman’s account piles coincidence upon coincidence upon coincidence. Here, as with the liable or guilty party in any civil or criminal case, it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places--a kind of Forrest Gump in the war against al Qaeda. But Uthman’s account at best strains credulity; and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al Qaeda. See Al-Adahi, 613 F.3d 1102; Al Odah, 611 F.3d 8; Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010); Awad, 608 F.3d 1; Al-Bihani, 590 F.3d 866. So too here. [. . .] We do “not weigh each piece of evidence in isolation, but consider all of the evidence taken as a whole.” Al Odah, 611 F.3d at 15 (quoting Awad, 608 F.3d at 6-7); see also Al-Adahi, 613 F.3d at 1105-07. Uthman’s actions and recurrent entanglement with al Qaeda show that he more likely than not was part of al Qaeda.

This is not to say that, had Al Mutairi been decided today, it certainly would have come out differently. The Al Mutairi facts are not identical to those in Uthman, and there were two inculpatory facts found in Uthman’s case that do not have parallels in Al Mutairi’s—those involving the persons with whom Uthman was captured, and his activities with the Furqan Institute, an organization from which members of al Qaeda were known to have been recruited. But, at a minimum, it does seem safe to say that Al Mutairi would have been a much closer case. Judge Kavanaugh made clear in Uthman that the facts found by the district court were, in combination, "more than sufficient" to support his detention (emphasis added). If that's the D.C. Circuit's conclusion in Uthman, we can presume that facts like those Judge Kollar-Kotelly found in Al Mutairi would--assuming that her findings themselves could be upheld--today clear the detainability bar. Yet the government did not even appeal the Al Mutairi decision and publicly cited Judge Kollar-Kotelly's ruling as a reason for Al Mutairi's release from Guantanamo. This shows a great deal of distance between the facts that would support a detention in cases before the district court in mid-2009 and those the appellate court has now said are sufficient. In other words, it shows just how far the courts have come.