Notes from the Salahi Argument

I tried to take good notes at the Salahi oral argument this morning. The following is a crude summary of the argument, the transcript of which I will post when it becomes available. Bottom line: Expect a remand to the district court in light of three D.C. Circuit opinions--Al Adahi, Awad, and Bensayah—all of which articulate standards different from the ones Judge James Robertson employed in his opinion. In this discussion, I assume a certain familiarity on the reader's part with the case. The briefs, for those who might want to get up to speed, are available here.
The oral argument was conducted entirely in open session and contained a serious discussion of a range of important issues. It also included a serious factual error on the part of both detainee counsel and two of the judges, which I discuss and correct below.
Arguing for the government, August E. Flentje begins by contending that Salahi's oath of bayat (loyalty) to Osama Bin Laden and his continued activities on its behalf over many years establish as a matter of law that he is “part of” Al Qaeda. Judge Robertson, he contends, erred both in not placing the burden on Salahi to prove that he had left the group and in dissecting the evidence of his membership piece by piece—in the fashion the D.C. Circuit has since rejected in Al Adahi--and not in light of the oath of bayat.
Judge David Tatel clarifies with Flentje that the only issue before the court is whether Salahi is “part of” Al Qaeda and that there are no alternative grounds for detention. And he then asks about Judge Robertson's finding that the Al Qaeda that Salahi joined to fight communism was a very different group from the one that ended up attacking the United States. Shouldn't that fact counsel against shifting the burden? Flentje rejects this, analogizing the case to that of the German soldier who joined the Wermacht before the U.S. and Germany went to war. If that person were captured later, neither the fact that he joined when there was no war nor his intent in doing so would matter. What would matter is that had joined and didn't quit and was thus still a member when captured. Tatel isn't buying it. They have an extended exchange on whether the changed nature of Al Qaeda does or does not affect the government's burden-shifting argument. And Tatel rejects the analogy to the German soldier, whose membership would be obvious from his uniform at the time of capture and for whom the question of vitiated membership would thus never arise.
Throughout the remainder of his argument, Flentje repeatedly attempts to bring the case back to the oath of bayat, but Tatel does not seem attracted to his burden-shifting argument. Rather, he seems to regard the oath of bayat as relevant, perhaps very important, but not as a conveying a burden shift.
Chief Judge David Sentelle then asks about the standard of review, and Flentje describes the matter as straddling the line between clear error review of facts and legal review. He does not resist Sentelle's description of the matter as a mixed question of fact and law.
Tatel then takes up a particularly interesting line of questioning. In Awad, the D.C. Circuit contended that being part of the enemy command structure was evidence of being “part of” enemy forces but not necessarily the only such evidence. Tatel poses the possibility that this case is fundamentally different. Unlike in Awad, where the detainee was physically attached in a combat zone to enemy forces, who treated him as one of their own, Salahi was far from a battlefield and not attached to an enemy unit. Maybe, Tatel suggests, the command structure argument as the hallmark of membership has more salience here. Flentje pushes back, arguing that Salahi, like Awad, initially joined Al Qaeda's fighting forces and then was treated by Al Qaeda as one of the gang, so there really isn't much difference. But Tatel forces him to admit that his case would be stronger if Salahi had taken clear orders, and Flentje then has to admit as well that this is a two-way street: He's worse off without being able to show that Salahi followed any orders (though he argues half-heartedly that Salahi actually did so). Tatel further elicits his admission that it is possible to knowingly cooperate with and work with Al Qaeda and yet not be a member.
Flentje then has a brief exchange with Judge Janice Rogers Brown (who stays mostly quiet throughout the argument) concerning whether the evidence would satisfy a command-structure rule, if one applied. He contends that while the government does not need to establish that Salahi was part of Al Qaeda's command structure, the standard would be satisfied in this case.
Tatel then brings up the subject of a remand, asking whether a remand is appropriate given that Judge Robertson's opinion has problems under both Awad and Al Adahi. Flentje says that the government would be happy with a remand, though it believes it should prevail as a matter of law. Sentelle closes the government's portion of the argument by asking Flentje whether the government accepts the preponderance of the evidence standard, which the D.C. Circuit has previously suggested may be too high. Flentje says that it does accept it.
Theresa M. Duncan argues the case for Salahi. She begins by suggesting that the government is objecting to rulings that Judge Robertson didn't make and not responding to those he did make and misrepresenting the record to boot. Sentelle cuts her off and asks whether it was appropriate for Judge Robertson to approach the government's evidence with an affirmative stance of “skepticism.” Duncan claims that Judge Robertson was not, in fact, treating this evidence differently from the way he treated evidence in other cases, but Sentelle is, well, skeptical. Robertson, after all, had written that “It is only fair to the petitioner . . . to view the government's showing with something like skepticism, drawing only such inferences as are compelled by the evidence.” And he does not say that in other cases or about the detainee's evidence, Sentelle points out. Duncan says that he also applied skepticism to Salahi's evidence, but Sentelle wants to know why he bothered to explicitly identify skepticism as the proper approach to government evidence and suggests that the district court's approach here implies a heightened standard of some kind. Duncan responds that Judge Robertson's skepticism is not a different approach but a response to the unusual factual circumstances of a case involving a great deal of evidence obtained under coercive circumstances. The opinion as a whole, she contends, makes clear that Judge Robertson was not holding the government to a different standard.
Tatel then returns to the command-structure question, asking of Duncan the rough inverse of his questions to Flentje. Even in the absence of a specific order, he wonders, isn't it kind of obvious that Salahi is operating in Al Qaeda's command structure? Bensayah, he says, makes clear that whether someone is “part of” Al Qaeda is to be decided on a functional, not a formalistic, basis. And while having a role in the organization's command structure is clearly part of that inquiry, does the government really need to show that a specific order was given and carried out to prove this? Or, in the alternative, could a court infer from the aggregate relationship that a detainee was part of the command structure? Duncan stresses that Judge Robertson did apply a functional approach to the evidence, but Tatel wonders if he applied the command structure rule (if there is such a rule) in too formalistic a fashion—one that the D.C. Circuit has since rejected. This brings him back to the question of remand, both in light of Awad and in light of Bensayah. Duncan acknowledges that the D.C. Circuit has moved the ball, but she resists the idea of a remand.
Then she gets in trouble.
Tatel asks about Al Adahi and the court's discussion in that case of conditional probability analysis. Didn't Judge Robertson in this case disaggregate the evidence and look at the pieces in exactly the kind of isolation that the D.C. Circuit had ridiculed in Al Adahi? No, Duncan argues, he summarized the evidence as a whole and gave a detailed timeline of Salahi's activities. But wait a minute, Tatel says. What about his oath of bayat? In the conclusion of the opinion, there's no mention of his oath. Doesn't that imply that Judge Robertson did not, in fact, examine the evidence in light of other pieces of evidence but picked it apart and looked at the pieces in abstraction from one another? And doesn't that, in turn, imply that a remand is necessary so that the district court can judge the facts under the right standard (which was not, after all, articulated when Judge Robertson ruled)?
And here Duncan makes a significant error. The correct answer to Tatel's question was to point out that, in fact, Judge Robertson did make explicit reference to the oath in his conclusion and clearly did think about the other evidence in light of that oath. In his conclusion, Judge Robertson writes: “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. That concern may be well founded” (emphasis added). But Duncan has apparently forgotten about this rather arresting passage. Instead, she resists Tatel's claim on the basis of the sentence that immediately follows it, which states that "Salahi fought with al-Qaida in Afghanistan (twenty years ago). . . ." This,  she says, is also a reference to the oath. That's a much weaker response.
And it bugs Sentelle, who pushes her hard on the absence of any explicit reference to the oath in the conclusion. He does not buy her claim that the reference to having fought incorporates a reference to the oath but insists, rather, that she concede that the opinion makes no reference to the oath--which is a damaging for her because it acknowledges a deep inconsistency between Judge Robertson's approach at the D.C. Circuit's in Al Adahi. And Duncan does so--erroneously. (I brought this error to her attention after the argument.)
In fact, the premise of Tatel's original question is largely correct, but the bayat point is not a good example of it. It is very hard to read Judge Robertson's opinion and not feel that he is engaged in precisely the sort of failure to see the big picture of which the D.C. Circuit complained in Al Adahi. That said, it simply isn't true that he didn't take explicit account of Salahi's oath in this conclusion. He did. And the disposition of the case should not rest on a misconception on that point.
Tatel then asks why it wouldn't make sense to send the case back in light of Awad, Al Adahi, and Bensayah, and Duncan responds that Judge Robertson's opinion fits snugly within the later opinions. Tatel jovially tells her that he would argue that too if he were in her shoes, but she should assume he disagrees and asks, why, given that assumption, a remand isn't appropriate. She concedes that there's nothing legally wrong with it.
Flentje, in a brief rebuttal, tries to return the discussion to his burden-shifting argument. The judges are not interested in revisiting that matter, and the argument concludes.
As I said at the outset, I think a remand is quite likely here--and almost certainly appropriate. The ground has shifted since Judge Robertson issued his original opinion in a number of different respects. It makes sense to have the district court evaluate the evidence under the current standards before the D.C. Circuit rules in this fateful and very important case.