Notes from the Hatim Oral Argument

They say you can't tell where an appeals panel is headed based on the oral argument. Sometimes you can. I will go out on a limb on the one I attended today: I will eat my computer if the D.C. Circuit affirms Judge Ricardo Urbina's decision in Hatim v. Obama. After watching the brief public portion of the argument, I suspect the only real question is whether the court will vacate and remand, as it did last week in Salahi, or whether it will reverse outright. As Larkin and I last night described the case in some detail, I will assume reader familiarity with it here. Sharon Swingle begins her argument for the government by asserting that there were a number of reversible errors in Judge Urbina's opinion. For starters, she says, Judge Urbina used the wrong legal standard, requiring the government to prove that Hatim received and executed orders as part of the enemy's command structure. Recent D.C. Circuit cases, Awad and Bensayah, adopted a different standard, and the court in Salahi vacated and remanded in part on this basis. Judge Stephen Williams her asks about the "substantial support" prong of the detainability standard, and Judge A. Raymond Randolph quickly shifts the conversation to this subject. Judge Randolph has something of a history of outflanking the government's arguments, and here he does just that: Where does the notion of substantial support come from, he wants to know? Is it different from material support? Swingle responds that it is informed by law of war principles, but it is the government's construction of its detention authority under the AUMF. Judge Randolph then asks why the support has to be substantial. In criminal law, he points out, aiding and abetting does not have to be substantial aiding and abetting. This line of questioning has little to do with anything in the government's briefs, and Swingle tries to pull Judge Randolph back to her argument. She reminds him that the government is principally arguing that Hatim is "part of" enemy forces, and the evidence, she claims, clearly supports a "part of" finding. Judge Randolph then shifts gears, pointing out that Judge Urbina had discounted the government's evidence on grounds that it was tainted by earlier torture. True, Swingle acknowledge, but that was not a permissible construction of the evidence. It is not the case even in criminal law, she argues, that any coercive treatment will taint all subsequent statements, and here a lot of time elapsed between the alleged maltreatment and the subsequent statements. Circumstances changed in that time, and the taint should lift. Judge Randolph points out that the government claims in its brief that it did not concede that any coercion had happened at all, while Judge Urbina says in his opinion that it presented no evidence to rebut Hatim's claims of mistreatment. Who, he asks, is right? Swingle responds that the government submitted Hatim's training camp application and that it submitted records of his statements predating any allegation of maltreatment. But Randolph cuts her off. Is the government contesting the allegations of maltreatment? Swingle responds that the government submitted evidence showing that Hatim had strong incentive to fabricate his claims. She notes that Judge Urbina did not make any credibility finding with respect to Hatim's story--which is striking, she says, considering how incredible it is. For example, Hatim said at his CSRT that he went to the Al Farouq training camp beacuse it was like summer camp. Swingle here is preaching to the choir--or maybe to the priest himself. She knows well that since Judge Urbina's ruling in this case, the D.C. Circuit, in Judge Randolph's own opinion in Al Adahi, has made clear that an incredible detainee story should actually count as evidence in the government's favor. The failure to make a credibility finding, she says--launching another arrow directly at another one of Judge Randolph's Al Adahi hobby horses--is part and parcel of Judge Urbina's unduly atomized approach to evidence. Rather than treat the evidence as a whole, she argues, Judge Urbina treated each piece of evidence without regard to its likely impact on the probative value of other pieces of evidence. Judge Randolph then asks whether Hatim testified in his trial, and Swingle says he did not. Judge Randolph then clarifies that the detainee admitted at his CSRT that he had attended Al Farouq. And he notes that Judge Urbina's approach to admissions at the CSRT seems directly in conflict with the manner in which Judge Hogan handled a similar case in which CSRT statements followed some time after alleged torture. Swingle concludes her argument by suggesting that all factors point to the conclusion that these statements should have been credited. They took place a long time after the alleged maltreatment and in a totally different context. She finishes her argument having been challenged mostly on whether the government had staked out tough enough ground. Brian Foster, perhaps knowing that he is realistically playing here to manage his losses, begins his argument for Hatim by claiming that the question before the court is whether to affirm Judge Urbina or to remand the case. Before beginning his argument for affirmance, he makes a point of  urging remand--as opposed to reversal--as the alternative to it. Judge Urbina's opinion, he points out, was one of the earliest cases decided and predates several of the court of appeals opinions with which it is in tension. Salahi, for similar reasons, provoked a remand, not a reversal, and the government's arguments here are generally similar. So the question is whether to vacate and remand, not whether to reverse with instructions to deny the writ. Subtext: A win for Foster here would be if he lives to fight another day in district court. Foster then pivots and argues that a remand is not necessary. Judge Urbina's opinion, he says, is right under the old standards, and it's right under the new ones. While Bihani makes clear that "substantial support" is grounds for detention, he acknowledges, and this is clearly in conflict with Judge Urbina's approach, this is harmless error. Nothing in the facts Judge Urbina found suggests that Hatim was a substantial supporter of the enemy, he says. Indeed, he argues, the government presented no evidence of Hatim's conduct that post-dated October of 2001, when the United States got involved in Afghanistan, or even September 11. Judge Randolph asks him why Hatim went from Yemen to Afghanistan. Several reasons, Foster says. He thought he was too much of a burden on his family; his wedding plans fell through; and he had heard of the fight in Chechnya against the Russians. Judge Randolph jumps in. He wanted to participate in that fight? He wanted a change of pace, Foster says; joining the fight was an idea he was considering, but he hadn't made any final decisions. Judge Randolph picks up on this point; what if he had gone to participate in the fight in Chechnya? Would that be grounds for detention or would he then be like the Uighurs? Foster says he thinks the Uighurs are an apt analogy here and notes that Hatim did argue in the district court that he never meant to fight the U.S. Judge Williams asks him to return to his earlier proposition that his activities all pre-date U.S. involvement in the region and thus preclude detention. Judge Williams says he is unsure that the implicit principle here is correct. Suppose, he suggests, it could be shown that Hatim was part of enemy forces shortly before U.S. involvement began but that there existed no specific evidence of involvement afterwards. Should the court infer that he remained "part of" enemy forces or not? What if the record is just a blank in the runup to capture? This is an enormously perceptive question on Judge Williams' part. The situation he describes comes up frequently, and the question of whether one presumes the relationship vital or presumes it non-vital in such situations affects a goodly number of cases. Foster, however, says he is not comfortable addressing the question in open session with specific reference to the facts of the case. Judge Williams briefly protests that he's actually interested in the question in the abstract, but he allows Foster to defer it to the closed session. Foster then goes on to acknowledge that Judge Urbina's embrace of the command structure test predates Awad's and Bensayah's articulation of a functional test, but he argues that the lower court's finding would not support a finding of functional membership anyway. So again, any error is harmless. As to the supposed failure to consider the evidence as a whole, he argues, there is no basis in the record to conclude that Judge Urbina did not consider the evidence as a whole. Rather, the judge said specifically that the government's evidence fared no better when viewed as a whole than it did in individual pieces, and there is no reason to doubt that he viewed the evidence in the manner in which he claimed he did. He said specifically, Foster points out, that a mosaic cannot hold together if its tiles are flawed. Judge Williams notes that such vague language about mosaics can mean different things, and that individual tiles may support other tiles. Foster acknowledges the ambiguity in Judge Urbina's words but says that the district court was saying that the evidence does not support the individual tiles, so it is wrong to build a mosaic out of them. Judge Randolph closes out the argument by asking about the district court's finding that Hatim had left Al Farouq and his apparent conclusion that this constituted some kind of break with Al Qaeda. Randolph says he doesn't understand this conclusion. Al Farouq is a training camp. Everyone leaves after his training. Foster argues that in this case, it is clear that there was a break. Hatim, he says, was a washout. He never liked it at Al Farouq and either faked an illness to leave or was genuinely ill. The court was then cleared for the closed session.